Research On The Guarantee System Of Sale Contract

The rapid economic development and efficient trading model promote the emergence of new forms of guarantee—sales contract guarantees,in which the parties with a loan relationship sign a sales contract,and the agreed settlement period ends as long as the debtor cannot repay the loan.The subject matter of the sale contract is paid off.Such guarantees are frequently used in private lending,and disputes continue to arise.The judgments of various courts are also very different.Therefore,the Supreme People's Court promulgated the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases," of which Article 24 deals with guarantees for sales contracts.This provision has a certain guiding role for judicial practice,but because it does not To clarify the security of the sales contract,it is even more difficult to determine whether the sale contract is a property or creditor's guarantee.Therefore,the security right holder also cannot obtain the priority to be paid when the debt is repaid.Many problems make the judicial decision appear contradictory,and the interests of the parties cannot be guaranteed in a fair manner.The author tried to solve these problems by providing the following solutions:Regarding the nature of the guarantee for the sale and purchase contract and the validity determination,the academic community has the nature of the guarantee of the contract for sale and purchase,the theory of the credit guarantee,the statement of the conditional sales contract,and the statement of the grant and guarantee.Through the study of the acquisition and guarantee,the author concludes that the sale contract is a guarantee for the loan contract and confirms the guarantee of the contract.With regard to the effectiveness of sales contract guarantees,the academic community affirms and denies that the specific theories include the hypothesis of collusion,legal circumvention(forbidden imprisonment),and the legalization of real rights.The author overcomes the above theories through argumentation,thus identifying the sales contract and The loan contracts are legal and effective,and the security rights are legal and effective,thus solving the problems evaded in the interpretation of Article 24.On the basis of solving the above two problems,in order to ensure that the sale and purchase contract guarantee can effectively play its positive role and ensure that it can be applied in a standardized way,the author further establishes the guarantee of the sales contract,the way of publicity,the regulation and realization of the guarantee.The method will be discussedin detail.The first is the establishment of publicity methods,including the determination of different public disclosure methods for possession of transferable movable property,non-possessory transferable movable property and immovable property,and the creation of guarantees for rights,which can ensure the public credibility of the sale and purchase contract guarantee and facilitate the security of transactions;Second,the establishment of the liquidation obligation will help ensure the balance of interests between the parties and avoid the behavior of the creditor's profits.On the premise of liquidation,the parties are free to agree on any means to realize the creditor's rights,including valuation,price change,sale and auction,etc.When there is a difference between the value of the subject matter of the contract and the amount of the debt,the insufficient creditor has the right to recover from the other party.The excess debtor also has the right to request the other party to return the balance in order to achieve a balance of interests.In summary,through the determination of the nature of the guarantee of the sales contract,the recognition of its effectiveness,the establishment of the security right,the establishment of the public notice,and the regulation of the realization of the obligee's rights,this guarantee method is gradually being institutionalized and standardized,and is providing judicial practice.A clear guideline is conducive to controversy,and at the same time it is also a good thing for the development of the social economy and the progress of the legal system.