Comment On Folk Lending Dispute Case Of LIU And Real Estate Company

It is a new type of atypical guarantee way the guarantee set by house-sailing contract for loan.In terms of the form,it is similar to the debt of removing the conditional choice,even it can be regarded as fluidity clause mistakenly to avoid the prohibitive regulation.But essentially,it is a new way for guarantee to reduce the transaction costs among the parties——Alienation Guarantee.In practice,the parties often agree "guarantee" by this way,while China's Security Law System have not gotten this guarantee mode yet.On the basis of the principle of autonomy,the parties actually have intentions with house to guaranty loan debt.However,as it is a new type of atypical guarantee way,there still remains questions on whether the guarantee with house-sailing contracts among parties is valid,whether the creditor can claim the priority of compensation if his debtor fail to repay the loan,and any other issues of sales contracts.In the case of the contract dispute about Mr.Liu accusing the folk debit of a real estate company,the author analyzes the case with the three focal point.One is the plaintiff Mr.Liu signed two copies of the house-sailing contract to guarantee loan agreement of 88 suites with a real estate company,the real estate company still failed to repay the debt,and the two sides signed 88 " house-sailing contract" to repay debt.Two is using the monthly interest of 5%on loan agreement including 2.8%of the legal nature of "intermediary" belongs to the intermediary fees or disguised usury.Three is with 88 suits and two copies of the house-sailing contract to guarantee loan agreement whether is valid and whether the loan debt can be repay by the house mortgage which failed to be repay.Combining the controversy with the civil law theory,firstly,it is about the legal nature of "intermediary" can be regarded as disguised usury.In essence,it is the way of evading the law that in order to avoid the highest regulatory flux on folk lending in the contract law,the parties split interest into interest into interest and agency fees.Setting Guarantees of the house-sailing contract should be conformed alienation guarantee and effective guarantee.Secondly,it is that there exist different opinions between the judicial circles and the academic world about the nature of the atypical guarantee of the house-sailing contract setting guarantee for loan agreement.The author mainly extracts that the comparison view about the guarantee case of the Supreme Court concluding the view of fluidity clause,the view of Conditional Removing the Choice of Debt,the view of Alienation Guarantee and so on.Compared among the various theories,the parties' intentions and the connotation of the legislation,it conforms to the view of Alienation Guarantee.The effectiveness of the contract is recognized from legal principle and legislative background.Thirdly,it is the contract about loan debt cannot be repay by the house mortgage,the contract of using house to meet the debts is an alienation guarantee with the agreement of datio in solutum by the parties to repay the debts.