The Nature And Validity About Contract Of Sale In Trading Guarantee

In recent years,the Trading Guarantee made by the parties who guarantee the loan debts by signing house purchase and sales contracts,and agree to perform the purchase and sales contracts and transfer the house ownership to realize creditor’s rights at the time when the creditor’s rights over the debts fail to be settled at expiry have been widely used in private lending practices in China.The nature and validity about the contract of sale in Trading Guarantee and other legal issues have been controversial all along in the theoretical and judicial practices.The key to standardizing such acts is to define the nature of such contracts,clarify the validity of such contracts,and determine the contents of rights and obligations of the parties under such contracts.Therefore,from the perspective of the theory of Civil Law,this paper sorted out and discussed the nature,validity and effectiveness and other issues about the contract of sale in Trading Guarantee,and draw conclusions as follows: the guarantee set between the parties under a contract of sale is a guarantee that appoints the object of the compensation in advance,and is in a kind of new atypical guarantee mode.Both the effect of the real rights guaranteed and the effect of debts under the sale and purchase are contained in the contract of sale.Of them,the effect of the real rights guaranteed only has the subrogation on the subjects and other effects without prejudice to third-party interests under the circumstance that it is not publicized.In terms of application of legal regulations,it is required to comprehensively apply the guarantee law regulations and debt law regulations,starting from the perspective of ensuring achievement of transaction purpose of the parties.In the meantime,the atypical object guarantee mode has no conflict with statutory principle of property law.The purchase and sales compensation mode agreed in advance constitutes neither Fluidity contract nor false representation through conspiring.In principle,the free meaning arrangement of the parties shall be affirmed.Under the circumstance that the parties apply for the ex-post adjustment,an examination can be carried out on the pricing value of guarantee objects based on the principle of public order and good custom,and the creditors are imposed with the compulsory liquidation obligations so as to safeguard substantial fairness between the parties.In terms of the issue of effect about the contract of sale in Trading Guarantee,whether some methods are adopted to publicize externally shall be taken as the standard to confirm its external force.Under the framework of current legal system,the contract of sale in Trading Guarantee may be publicized by advance notice registration system.This paper is divided into four parts:Part 1: Starting from the existing judicial cases,the nature and validity judicial viewpoints about the contract of sale in Trading Guarantee are concluded and summarized to educe the chaotic phenomena that the nature and validity understanding about contract of sale in Trading Guarantee lack unified judicial viewpoints in current juridical practices,and further to generalize the main controversial focus.Part 2: A study is made on the nature about the contract of sale in Trading Guarantee,and the conclusion is drawn through making legal justification on the nature about the contract of sale in Trading Guarantee respectively from the purchase and sales perspective and guarantee perspective: Trading Guarantee has the general characteristics of guarantee.The ownership of the house under transaction is taken as the guarantee object instead of creditor’s rights in such a guarantee.The guarantee is in object guarantee mode,but is different from the existing object guarantee mode,and then a new atypical guarantee is established.Part 3: The validity about the contract of sale in Trading Guarantee is discussed.Through comparison and analysis of the similarities and differences between the contract of sale in Trading Guarantee and the Fluidity contracts,statutory principle of property law,false representation through conspiring,it is affirmed that excessive concern about the contract validity in advance is inadvisable in principle,and the validity about the contract of sale in Trading Guarantee should be recognized instead.Under the circumstance that any dispute happens and the parties request to adjust the contract contents,the compulsory liquidation obligation may be conferred on the creditor based on the principle of public order and good social customs so as to ensure the substantial fairness between the doers.Part 4: Further expanded conception is conducted on the effect contents about the contract of sale in Trading Guarantee from internal and external effects.In addition,some discussions are made on the existing advance notice registration system and the US notice registration system as for the choice of publicity method of the contracts in the hope to provide certain valuable reference for the legal norms about the contract of sale in Trading Guarantee and other atypical acts.