Analysis On The Legal Regulation Of Secured Contract Of Sale And Purchase In China

In recent years,some developers borrow from the natural person in the condition where parties sign a buying and selling contract to guarantee the loan repayment at the same time in the sign of a contract for loan of money.There is the controversy among local courts that whether the parties is borrowing contract relationship or business contract relationship and whether the parties have the right to request business contract.Even the Supreme Court successively took a different view in two cases of bulletins.The promulgation of Article 24 of the "Informal Finance Private Lending" gave some reference for the settlement of such disputes,concluding that the basic legal relationship between the parties was private lending and both parties are not allowed to request the fulfillment of the contract of sale and purchase.But it did not make it clear about its validity and whether the lender has the priority to the payment in terms of the contract of sale and purchase.This thesis mainly discusses the following aspects:Firstly,the thesis makes the confirmation according to the background of secured contract of sale purchase,clarifying the difference between the concept of the secured contract of sale and purchase and other related concepts.Secondly,in terms of the nature of the contract,based on the analysis of several theoretical doctrines and practical precedents,the thesis concludes that the nature of the contract is merely a general creditor's rights guarantee system,which doesn't belong to any other existing legal norms in our country and non-typical guarantee.Then,it regards Article 24 of the Private Lending Regulations as center,exploring the proper meaning of this item in terms of the effectiveness of the sale contract and the fulfillment of the secured contract of sale purchase.Finally,it analyzes the perfection of the law to the secured contract of sale purchase,and the special condition applicable to this article or not applicable.And the paper concludes that the application of Article 24 of the Private Lending Regulations should be read restrictively.