Research On The Priority Validity Of The Trading-based Guarantee

In the private lending activities,that the Contract of Real Estate Purchasing act as a Guarantee for the Contract of Loan,which is a new kind of Atypical Real Rights for Guarantee,is more and more popular.As the legal relations of the new kind Guarantee are special and complicated,the views of the academic and judicial practice on the legal nature and the validity of the Trading-based Guarantee are very different.And as there is no relevant provision in the law and regulation,the views of the academic and judicial practice for whether the Trading-based Guarantee should be publicized and whether there is priority validity are also contradictory.In order to safeguard the legitimate rights and interests of the parties and regulate the behavior of private lending,the Article 24 of Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trail of Private Lending Cases,which came into force on September 1,2015,unified the trail rules of the Trading-based Guarantee.However,Article 24,while acknowledging such a kind of Guarantee,did not specify the priority validity.Therefore the academic and judicial practice did not form a unified view of the priority validity from the judicial interpretation.This paper takes the priority validity of the Trading-based Guarantee as the research object,hoping to dig out the theoretical basis of the Trading-based Guarantee from the academic disputes,and clarify the legal status of the Trading-based Guarantee,so that the rationality of giving priority validity to the Trading-based Guarantee could be inspected in-depth.This paper is divided into five parts:The first part is the Introduction.This paper puts forward the problem of the priority validity of Trading-based Guarantee from the contradictory views of the academic theory and the judicial cases.Explains the significance and clarifies the object of this study.And put forward the innovation of this paper.The second part studies the theoretical basis of giving priority validity to the Trading-based Guarantee.As a new type of atypical Guarantee,the Trading-based Guarantee shall not be confined by The Numerus Clausus Principle.This part analyzes the legal nature of Trading-based Guarantee first,and finds that the Guarantee is a Guarantee of Real Right.Then the analysis of the Guarantee is not the typical form of Guarantee,but a new type of atypical Guarantee.Then The Numerus Clausus Principle should be mitigated,and the Trading-based Guarantee as a atypical guarantee should not be found in violation the Principle.The third part make it clear that the publicity shall be the prerequisite of giving priority validity to the Trading-based Guarantee.Due to the particularity of the Trading-based Guarantee,this part mainly discusses the publicity method.The fourth part discusses the content of the priority validity.In accordance with the performance of the priority validity of the Real Rights,it can be analyze from two aspects.The Guarantee of Real Right has priority over the general claim,but because of the particularity of the Trading-based Guarantee,whether the Guarantee is publicized has a great impact on the priority validity.The Trading-based Guarantee may be on the same subject with a typical Guarantee,so this part also discuss the priority validity from publicity without publicity in two aspects.The fifth part is Summary.This part summarizes the full view and looks forward to the legal status of the atypical Guarantee.