An Empirical Study On The Guarantee Of Private Loans By Sales Contract

With the increasing prevalence of private lending,it is increasingly favored by people by way of dealing contract for private lending guarantees.Hence more and more disputes are resulted.In judicial practice,such disputes emerge in an endless stream,the results of such case is different.The newly promulgated provision,"Provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of cases involving private lending"(hereinafter referred to as "Judicial Interpretation of Private Lending"),the article twenty-fourth makes the provisions of the trial for the guarantee of private lending by business contract.However,it does not define the nature and effectiveness of the business contract.In this paper,the author mainly adopts the method of empirical to research and analysis of such cases in judicial practice.Furthermore,the paper discusses the nature and effectiveness of the business contract for the guarantee of private lending,wishing for helping the judicial practice.This paper is divided into three parts.The first part starts with the judicial practice in china.The statistic data of private lending guaranteed by business contract were gathered,before and after the promulgation of "Judicial Interpretation of Private Lending".The typical cases of the different judgments of the validity of the business contract were analyzed,pointing out the problem of nature and effectiveness of the business contract on guarantee of private lending.In the second part,the author firstly introduces and combs the understanding of the nature of this kind of contract which is divided into three categories:the theory of non typical guarantee,the theory of contract of debt contract and the the theory of contract of conditional business contract.Then the problems existing in these three views are pointed out,and concludes that the business contract guarantees is essentially guaranteed by the creditor's rights,belong to non typical guarantee.The third part puts forward that the private lending guaranteed by business contract is effective.The paper introduces the dispute of the validity of the business contract,which makes clear that guaranteed business contract is burden behavior which is the true meaning of the parties and does not constitute false representation.Because of the new real right is not established,there is no violation of the statutory principle of property rights.The fluidity clause is only applicable to the mortgage pledge,and is not applicable to the guaranteed business contract.