Study Of Rule 24 On "Provisions Of The Supreme People's Court About Several Issues Concerning The Application Of Law In Civil Loan Cases"

With the development of folk financing,in the practice of a new form of guarantee.Because commercial housing construction cannot mortgage registration,in practice,real estate developers as borrowers financing to others,to get the trust and show its sincerity reimbursement,lenders for the sake of their creditor's rights guaranteed,after both sides folk lending contracts or the borrower or a third person and lenders to sign the sales contract,commercial housing sales contract,agreement such as a borrower to repay the debt,will be the sales contract and other rights transfer of the ownership of the subject matter to lenders,such as business contract is often become a guarantee sales contract.Since most type guarantee sales contract content similar to ordinary business contract content,did not express their guarantee behavior in the sales contract,is the most important judgment on the basis of the folk lending legal relationship between the seller and the buyer,the amount of borrowing is consistent with the agreed sales contract the subject matter of the price,the buyer to the seller did not actually pay the price,and so on.There are many views and ideas about the nature and the validity of the contract,and there are many different ways of doing it.August 6,2015,the supreme people's court,the supreme people's court on some issues of applicable law in private lending cases provisions article 24,type of guarantee pointed out the direction of business contract class case,unified the judgement.After exploring the supreme people's court on some issues of applicable law in private lending cases provisions on the makers of the meaning,type found makers thought guarantees the nature of the business contract as the guarantee,but not in the provisions that are not to guarantee model to determine the effectiveness of the sales contract,so still did not rise to termination of theoretical debate,eliminate the effect of the practice of confusion.This article concluded that the nature of the business contract should be explicitly guaranteed as the guarantee,and establish the guarantee in our country,scientifically determine type guarantee the effectiveness of the contract of buying and selling,in involuntary liquidation obligation,don't blindly emphasizes the implementation should be depending on the specific details of a case,with space to the judge.