Research On The Legal Issues Of Private Lending And Guarantee System

"Concession guarantee" as the concept of rationality has no place in China’s legislation and judicature.The emergence of Article 24 of the "Provisions on the Application of Law in the Trial of Private Lending Cases" breaks the circumstance that the transfer guarantee cannot be complied with.The main purpose of the article is summarized as:"This article is the relevant provision for transfer guarantees." As a non-typical guarantee,transfer guarantees are widely used in economic activities and are mostly in the legal relationship of private lending.In recent years,there have been many legal disputes related to transfer guarantees in China.Due to the imperfections in legislation and unclear attitudes,the position of judicial referees has not been unified.How to correctly determine the private loan concession guarantee,the nature of the private loan concession guarantee,and how to determine the effectiveness of the transfer guarantee contract are all important issues in judicial practice.The paper is divided into four parts.The first part asks questions.Despite the existence of a large number of transfer guarantees in practice,the transfer guarantees lack legislation in our country.The provisions of the "Provisions on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases" promulgated in 2015 have provided preliminary stipulations for the Court’s position in adjudicating the disputes involving the use of private lending and guarantees.Because of the simplicity and exploratory nature of the legal provisions,the judicial practice of private lending to guaranty disputes has a wide range of judicial confirmation of transfer guarantees,controversy in nature,and unclear effectiveness.The second part is the definition and confirmation of private loan transfer guarantee system.Because of the historical development and the differences in the legal environment,Germany,Japan,the United Kingdom,the United States,the mainland of China,and the Taiwan region,as well as the existing judicial interpretations,have differences in the definition of“arbitrage guarantee".The difference in concept is actually the embodiment of institutional differences.Therefore,in the judicial environment of our country,we cannot simply identify the transfer guarantee system with reference to the practices of other countries and regions.Through comparison and reference,we should correctly identify our own transfer guarantee system.The third part is the characterization of the private lending transfer guarantee system.In judicial practice,there is a controversy over the understanding of the nature of the private lending transfer guarantee system.By sorting out typical case judgments,material debt repayment,disqualification contracts,and exile contracts are the main ideas in practice.Similarities,but essentially different systems,should be correctly distinguished.The fourth part is the effectiveness of the private lending transfer guarantee contract.There are two types of judgments in courts.Some courts rule that contracts are lawful and effective according to the principle of autonomy of the will.Another part of the courts believes that the transfer of guarantees violates the statutory principle of real rights and constitutes a deportment contract,thereby invalidating the contract.Through the discussion of the nature of transfer guarantees,the statutory rights of real property and the demurrage contract are not the cause of their invalidity.The validity of the contract should be determined by examining the true meaning of the parties.Its effectiveness should not be easily denied.