Definition Of The Nature Of The Nature Of A Sale And Purchase Guarantee Contract

Since 2012,the contradiction between the tight loan policy of banks and financial institutions and the strong financing demand of the main body of the market economy has become increasingly prominent,which promotes the main body of the market economy,especially the private financing main body to explore new forms of financing guarantee and apply them in the economic communication activities.the buying and selling guarantee not only arises at the historic moment,but also gives new tasks and challenges to the legal theory researchers and judicial practitioners in China.Based on the fact that there are a large number of cases in practice and the academic circles on the effectiveness of the nature of the theoretical dispute,this paper will be based on empirical analysis,based on the existing court decision ideas as a logical starting point,to explore the basic legal relationship between the parties,so as to define the legal nature of such contracts and the effectiveness of the guarantee.Through comparative analysis,it is found that the more appropriate explanation is to define the sale type guarantee as an atypical real right guarantee,the parties do not constitute a conspiracy false intention,in the context of the principle of relaxation of the real right legal doctrine,when the flow clause is not enough to threaten the legitimate rights and interests of the debtor,the application of the prohibition of liquid flow clause should be purposefully limited,allowing the existence of exceptions,to confirm the effectiveness of the guarantee.In addition,this paper further proposes that it is more appropriate to understand article 24 of the non-governmental lending regulations from the perspective of atypical real right guarantee.