Study Of Transferring Guarantee For Real Estate

With the growing demand for financing industry in our country’s private lending market,a secured transaction model of “secured loan by sale” comes into being,in which the parties in the transaction often take real estate as the object,and agree in the contract of sale to transfer the ownership of the subject matter of the guarantee to the creditor,and the title has been transferred to register in order to guarantee the debtor to pay off the debt,the theory and some judicial decisions claim that it is transferring guarantee for real estate.Thus the article 24 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Lending Cases confirms the rules of adjudication in the case of“trading guarantee”.However,the rules are more ambiguous,it is difficult to determine the specific type of “trading guarantee”.Transferring guarantee for real estate is actually a branch of “trading guarantee”.In the process of judicial adjudication,a separate rule should be formed on the establishment and validity of the transferring guarantee for real estate.In addition to the introduction and conclusion of this article,there are five chapters.The first chapter is the introduction of transferring guarantee for real estate.This part focuses on clarifying the difference between transferring guarantee and the related conceptions,and then introduce the causes,components and the risk of such guarantee mode under the current system of our country.The second chapter introduces the origin of transferring guarantee and its theoretical development process.The transferring guarantee has matured through the practice and theory development of Germany,Japan and Taiwan.This part intends to explore the development and changes of the theory of transferring guarantee in China by combing the origin of transferring guarantee system and its evolution overseas.The third chapter introduces logical connection and functional coupling between transferring guarantee for real estate and “trading guarantee”.This part firstly argues that transferring guarantee is a branch of trading guarantee.In the application of section 24 of the interpretation,there shall be a dichotomy for trading guarantee,the dichotomy criterion is whether the debtor transfers title of the subject and registers it with the creditor.If the parties perform the registration publicity procedure,the trading guarantee is consistent with the mode of transferring guarantee for real estate.The registration and publicity procedure here not only includes the transferring registration,but also extends to notice registration and recordregistration.If the parties fail to perform the registration and publicity procedures,the trading guarantee is an appointment to pay off the goods on behalf of the parties(the relationship is pure debts).Secondly,through the analysis of typical cases,this part summarizes the reasons of the difference of the judgment standard of transferring guarantee for real estate.The judicial decision neglects the role of the registration procedure in the“trading guarantee”,which leads to the inaccuracy of the recognition of the “security nature” and lack of uniform rules applicable to transferring guarantee for real estate.Finally,the establishment elements and validity rules of transferring guarantee for real estate are constructed.The fourth chapter introduces the dispute and doubt about the validity of transferring guarantee for real estate.This part starts with the validity of transferring guarantee for real estate contract,comparison with mortgage system and the qualitative analysis of transferring guarantee for real estate.In this part,the dispute in theory is eliminated and the concept of transferring guarantee for real estate is put forward,which is not an absolute dichotomy of debt,but a kind of transaction mode with the characteristics of “arrangement of debt arrangement + registration and publicity(with real right content)”.The fifth chapter introduces the way to realize transferring guarantee for real estate.This part recognize the existence of space of transferring guarantee for real estate in the general rule of Civil Law Article 10 “custom”,through the way of judicial adjudication,transferring guarantee is guaranteed with the power of sureness of law.And then negates the existence space of transferring guarantee for real estate in the mortgage.In the context of absolute prohibition of lien clause,the transfer of ownership involved in transferring guarantee for real estate violate it;even if the legislation of relative prohibition is adopted,the time point of ownership transfer of transferring guarantee for real estate is different from it.