The Study On Trading-Based Guarantee

In recent years,the trading-based guarantee is a new trading model with the development economy.In our country,there are no relevant provisions on civil law.From the lawsuit cases have occurred,the trading-based guarantee mainly for signing commercial real estate sales contract.In those cases,different levels of courts hold different attitude,academic circles also have different opinions.There is untypical security interest,alienation guarantee or after-alienation guarantee,and other arguments.The study found,the focus of the dispute is three:one is the legal attribute of the security issue;the second is the efifectiveness of the sales contract and implementation issues;the third is the realization of guarantee.In the study of the "guarantee" effect of the trading-based guarantee,the article analyzes various controversies existing in academia,through the real intentions of the parties,the principle of law as well as maneuverability and other aspects of research think,although the parties have the intention of establishing a security of title,but the lack of legal elements.So,only have the debt constraints.Different from the traditional type of guarantee,the trading-based guarantee not belong the material more than the guarantee of a person.Its effect comes from the change of the value of the subject matter of the contract of sale.The effectiveness of the sales contract is a focus issue of parties dispute.On this issue,exist violation of fluidity clause and hypocritical.After analysis,the trading-based guarantee is legal means more than economic behavior.Does not constitute a hypocritical general advice and not constitute a violation of the fluidity clause.The realization of the trading-based guarantee involves the legal effect arising between the parties and with other interested parties.Between the debtors and creditors should respect the autonomy of the parties,follow the principle of freedom of contract.However,the interests of others should be forbidden.Due to the lack of publicity for the trading-based guarantee,it manifests itself as a guarantee of the nature of claims.Therefore,it does not have the guarantee of the priority of compensation and the subject matter of the subject matter of the binding.This is exactly the limitation of the trading-based guarantee.