The Identification And Judicial Countermeasure Of The House Debt Repayment Which Involves Guarantees

The house debt repayment which involves guarantees,is a new type of guarantee in practice.There is no clear understanding of its nature and effectiveness in the academic and judicial circles in China,which leads to the inability to accurately identify and apply this kind of dispute in judicial practice.The study of it needs to built on mature,rigorous logic.This paper starts with the identification of the house debt repayment which involves guarantees,and discusses the problem of identifying and handling the dispute in the judicial judgment.In addition to the introduction and conclusion,this paper is about 20,000 words,which can be divided into four parts.Part one: This part analyzes the legal characteristics of the house debt repayment which involves guarantees.The legal structure of it is that,when contract parties are making a contract,they are establishing a debtor-creditor relationship,and at the same time,signing a housing sales contract.In the case that debtor cannot fulfill its obligation when the performance period expires,the creditor can require the debtor to perform the housing sales contract.According to this,we can find that the house which use to sold contract agreed,is applied to reach the purpose of realization of obligee's rights.The housing sales contract has the nature of supplement and subordination to the contract of creditor's right and debt.All of this indicate that,the house debt repayment which involves guarantees is a kind of creditor's right guarantee.Part two: This part discusses the effectiveness of the house debt repayment which involves guarantees.First of all,the house debt repayment which involves guarantees has the appearance of housing sales,but the purpose of it is not sales,it cannot occur the effectiveness of housing sales.Secondly,the house debt repayment which involves guarantees only has the appearance of creditor's rights and does not have the property of real rights,will not violate the legal principle of real rights.Finally,the house debt repayment which involves guarantees violates the prohibition of liquidity rules and cannot play full role in the contract performing process,which given by the parties.So,it should be regulated.Part three: In order to apply the law properly,it is necessary to identify the type of dispute,which infer to the house debt repayment which involves guarantees,in judicial practice.In practice,we can distinguish the house debt repayment which involves guarantees with general housing sales.There are several ways,such as,surveying the nature of the housing sales agreement,judging whether there is a debtor-creditor relationship between the parties,or whether the housing sales contract has the main content of housing transactions,and whether the housing transactions conform to the trading habits.In addition,the time of contract signing and the existence or absence of guarantee function can be used to determine the secured type of debt to the house and the liquidated type of debt to the house,so as to avoid confusion of them.Part four: Its settlement should be adhered to principle of liquidation,and a fair appraisal should be made to the part of the house value,which should offset the debt.The creditor's demand for priority payment of house auction funds violates the principle of equality of creditor's rights,and should not be supported.The guarantee type provided by the third party can expand the scope of the debtor's liability property.The court should support the creditor's request to auction the house to offset the debt.Should assure the meaning of the party,because pays debt with the house may have the possibility of change.Consensus about signing a new housing purchase and sale contract after the expiration of the debt performance period,the court shall try the case in accordance with the contractual relationship of the house purchase and sale.