The Validity Of The Trade Guarantee And The Judicial Response

The number of private lending in our country has shown a trend of explosive growth in recent years.Due to the convenience of transactions,borrowing has also produced corresponding innovations in terms of form,and the trading-based guarantee is the products of innovation.Due to the fact that the law provides very few regulations for such new types of transactions,disputes arising from them are controversial in all aspects.Even with its most basic nature,the academic community has no intention of mentioning it,not to mention its effectiveness.These issues need to be clarified.This paper tries to give corresponding solutions to the problem by considering the nature of the transaction-type guarantee and the effectiveness of the sales contract,and the difficulties faced by the current judicial practice.The main parts of this article is roughly as follows:The first part mainly discusses the concept definition and the nature of the trading-based guarantee.In the nature determination,the article concludes that through comparison and analysis with some theories,the trading-based guarantee is a new type of atypical security right which formed by the parties in order to facilitate the transaction and consider the risks and benefits in the current private financing guarantee field in China.In the second part,starting from the practice of buying and selling security cases,through the study and analysis of many referee ideas of dispute cases in recent years,the author divided the relevant cases into three categories according to different trial ideas and evaluated each kind of referee ideas.,And then based on this summed up the focus of the trading-based guarantee case,that is whether the sale contract is valid.The third part is the study of the effectiveness of the contract of sale from the opposite side of the "invalidation theory." The "invalidity statement" states that the sale contract is invalid because it violates the law in three ways.This article refutes thesethree aspects and thus proves the validity of the contract in its opposite,so as to confirm the validity of the contract.The fourth part mainly deals with the suggestions to improve the thinking in the relevant referee.That is,in judicial practice,the adjudicators shall be guided by the concept of fairness and justice,determine the liquidity and quality of the guarantee in the transaction-based guarantee,clear the liquidity content in the trading-based guarantee,and clarify the claims and liabilities between the parties in order to reasonably distribute the laws between the parties.Risk,and then effectively resolve different civil disputes,while safeguarding the benign operation of the social economy.