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The Qualitative And Institutional Design Of "Sales Contract As A Guarantee Of Private Lending Contracts"

Posted on:2019-08-22Degree:MasterType:Thesis
Country:ChinaCandidate:X C YanFull Text:PDF
GTID:2416330542999923Subject:Law
Abstract/Summary:PDF Full Text Request
The overall framework of this article is based on Article 24 of the Provisions on Several Issues Concerning the Application of Law in the Trial of Non-Government Lending Cases(hereinafter referred to as "legal interpretation"),which leads to the conclusion that the signing of the contract of sale and purchase by the parties in widespread economic life Discussion of the new guarantee phenomenon.First of all,through case studies,the five types involved in daily life are summed up as follows:sale and purchase guarantee,surface sale and purchase in real terms,liquidated repayment,generalized mortgage pledge,mutual conversion of trades and loans,or coexistence.The latter four types of regulation can be regulated by the legal system of the existing guarantee system and the contractual field of our country,with the focus on the first theoretical model of the guarantee of sale and purchase and the system construction.Discussion of sale and purchase guarantees,24 first established the principal and subordinate relationship between the sale and purchase contracts and loan contracts,followed by a clear settlement of the implementation of the contract of sale.Further related to whether such a guarantee is a new type of security interest or the credit credit itself as a result of the transfer.According to the opinion of the Supreme People's Court judge and the speculation of the parties in the article that the real meaning of the parties that the construction of the security model for sale and purchase can be placed on the sale and purchase of security should be a new security presence.As a new kind of security right,we must first solve its legal nature,summarize the current heatedly discussed academic views and understand the legislative cases of the two major legal systems on behalf of the country.We find that it mainly involves disputes between two major theories:transfer of guarantee and unification of guarantee system.Advocating that the former believes that the sale and purchase guarantee is a variant with Chinese characteristics from the perspective of the guarantee and transfer theory of Germany and Japan,the latter mainly adopts the structure of movability guarantee system of the American Uniform Commercial Code,which is more pragmatic and freer,The former is more traditional,the latter unconventional.By comparing the two theories,it is found that Grant and Guarantee can only resolve the situation that the ownership has been transferred and legally publicized before the debt period,and can not cover such situations as the registration of real estate advance notice,the chattel sale contract and the transfer of debt when the debt can not be fulfilled,And it is a transitional theory that the civil law countries should deal with the non-transfer of possession of movable property without legal rules.They are relatively old and there is no corresponding publicity procedure in our country.The actual operation has limited benefits.The disadvantage of the latter is that it is too open,and there are differences in the legislative focus of different legal systems.The direct reference can easily lead to turmoil in the guarantee system.The advantage lies in saving the judicial resources.The open stand is also inclusive in terms of inclusiveness and in promoting legal and economic innovation Adaptability has unparalleled advantages.Considering further the current guarantee system in our country,Quoting the "Quebec Civil Code" as the attitude toward the transplantation of the unilateral guarantee system in the civil law system region,supplemented by the United Nations Commission of Trade"Legislative Guide on Movable Property Security Transactions" is committed to the modernization of the guarantee system in all countries,With reference to the relevant provisions of the "Model Law on Movable Property Secured Transactions" and the existing system of real property guarantee,it is considered that it is worth our reference to the relevant provisions of the "One Yuan Security System" The constant renewal of new security by law and regulations to leave enough space.The model advocated in this paper only adopts the principle of unitaryization,signing guarantee agreement,specifying the grantor,the mortgagee and the encumbered property,which is in conformity with the legal type of collateral provided in the "Property Law" and"Guarantee Law" in our country.The legal Publicity procedures,regardless of the contract to take what terminology,as long as the heart of the underlying debt of the parties to establish a guarantee can form an atypical guarantee.Further clarification of the publicity,effectiveness and realization of sale and purchase guarantees in Chapter IV will reduce the impact of opening up and maintain the stability of the system.To sum up,this article boldly draws on the pragmatism of the legislative thinking,with the statutory stance of property rights to seek a stable and can be satisfied that the new system.However,the scope of the study is relatively macroscopic.Therefore,discussions are only based on the feasibility of the method.Whether the details are reasonable or not needs further study.
Keywords/Search Tags:saleand purchase guarantee, post-assignment guarantee, assignment guarantee, unitary guarantee system, ownership guarantee
PDF Full Text Request
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