Study On The Attribute And Effectiveness Of Business Type Guarantee In Private Lending

In recent years,as the economic development pattern has changed and financing difficulties are increasingly serious,getting finance through traditional finance institution cannot satisfy people's finance requirement already,which causes the flourishing of nongovernmental financing guarantees.However,the processes of the establishment,registration,and achievement of real estate guarantees are extremely complicated and expansive,which forms the situation that the traditional guarantee patterns have difficulties in implementing the legislation of nongovernmental financing.Because of that,a new guarantee pattern has emerged at the historical moment.The new pattern is that all participants agree with the loan matters,meanwhile,the financiers(debtors)proactively propose awarding the house sale contract taking their own house for guarantee and transact pre-registration or record registration and if the loan is not paid off before the contract maturity they will fulfil the house sale contract.This type of contract is known as a guaranteed sale,and the guarantee set up by the contract is called a trade guarantee.In judicial practice,the court has made a case for such cases in the case of a dispute over the sale of houses or private loans.So far,the main bifurcation in the theoretical realm of China is that what is the legal property of the house sale contract and the business type guarantee is valid or not.From the point of view of the legislative purpose of the security property rights and the respect of the party's sense of autonomy.The concept of the business type guarantee contract is a non-typical guarantee,which is the guarantee of property but not the guarantee of the creditor's rights,and it is the post-transfer guarantee but not a mortgage in security transfers.Business type guarantee does not violate the numerus clauses by creating the new type of property right.Both participants in debit and credit relationship agree to take the house sale contract to set the guarantee means that the creditor has the obligation of liquidation when actualizing the guarantee and business type guarantee contract does not violate the prohibition of fluidity.If both parties to the contract agree on eliminating the obligation of liquidation,then the part of the fluidity clause will be invalid,and it will not affect the potence of the business type guarantee.In addition,when choosing the liquidation mode during the guarantee implementation,if the participants have agreed on the choice of attribution liquidation or the disposal and liquidation,then take whatever they have agreed on or if they have not agreed on either or the agreement is not certain,then take the choose the liquidation mode.