Study On The Legal Nature And Effectiveness Of The Trading Style Guarantee

Trading style guarantee is a kind of guarantee method that has appeared more in China's private lending relationship in recent years,and its main manifestation is that the creditor and the debtor have signed sale contract on certain subject.Stipulate when the debtor does not fulfill the contract of maturity loan,the creditor may request the performance of the sale contract to obtain the ownership(or disposal right)of the specific property to satisfy the debt.Because this kind of guarantee method is not the guarantee type that our country guarantees law and property law clearly stipulates,and also based on the real estate as the guarantee basis,there are a lot of disputes in the aspects of its nature effectiveness.Not only in the theoretical circle,but also in the judicial practice,there is a great difference in the determination of this kind of guarantee.Even after the introduction of the judicial interpretation of private lending,the validity of the Trading style guarantee was affirmed,and the realization of the purchase and sale guarantee was also clarified.But for fundamental problems such as the nature and the effect still took evasive attitude,this led to many problem of the trading style guarantee cannot be solved in practice,such as when the guaranty is transferred,the responsibility of the guarantee shall be borne by what or by whom.This article is divided into six parts altogether,according to our country's traditional civil law theory analyses the trading style guarantee,and according to the existing law in our country to explore the effect that trading style should have.First of all,as a precondition to solve the problem of trading style guarantee the effectiveness of the nature of the problem are analyzed,and then solve the effectiveness of the trading style guarantee.Then according to this case and the problems existing in the judicial practice in our country,with the business type of guarantee under the condition of the cession of the subject matter is the responsibility of bear was analyzed,and finally provide solution for this case.The first part is the brief introduction of the case,and introduces the focus of dispute and the issues that need to be solved.In the second part,the nature of the trading style guarantees are analyzed,and compared with the liquid after the contract,guarantee,guarantee confusing concepts,finally demonstrates that the trading style guarantee is creditor's rights guarantee.The third part is to clarify the validity of the guarantee,according to the conclusion of the first part and the validity of the theory of civil law.The fourth part is to integrate and find out the existing problems in the judicial practice before and after the introduction of the judicial interpretation of private lending.The fifth part is to find the solution in the legal framework of our country according to the problems raised in the fourth part,and to elaborate the content of the trading style guarantee in the application.The sixth part is divided into the conclusion,aiming at the case of this paper proposes the solution path.