Research On Loan Guarantee Contracts In The Disguise Of Sales

In recent years,due to the rapid development of China's socialist market economy and the increase in private financing needs,the two parties sign the contracts of sale to guarantee the loan contracts frequently.This paper calls it "the loan guarantee contracts in the disguise of sales".For such contracts,there have always been different views in the theoretical world.The Supreme Court has also issued different judgment results for the judgment of such contracts.In order to solve such problems,the Supreme People's Court issued a judicial interpretation to deal with such issues with a special clause.Although this judicial interpretation of the Supreme Court has solved some difficulties in practice,it does not give clear guidance on the substantive issues of the loan contract.Instead,it intentionally obscures some problems and brings difficulties to practice.Even after the introduction of the judicial interpretation,the Supreme Court made a judgment different from the requirements of that.This paper mainly uses the methods of positivist analysis and comparison,discovering and discussing the deep-seated problems of the loan guarantee contracts in the disguise of sales through the combination of theoretical analysis and case study,in order to deepen the understanding of the contracts from the practice and academic circles.This paper is divided into six parts.The first chapter is an overview of the loan guarantee contracts in the disguise of sales.This chapter introduces the concept,background and characteristics of such contracts.The second chapter introduces the Supreme Court's ambiguity about the attitude of such contracts.This chapter is divided into two parts.The first part introduces the case of the three Supreme Court's authoritative judgments and the results of the referee to show the instability of the Supreme Court's authoritative case.The second part introduces the meaning and defects of Article 24 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases.And the two parts of the Supreme Court are not clear about the attitude of such contracts.The third chapter introduces the confusion of the results of the local courts after the appearance of the judicial interpretation.This chapter firstly introduces the different judgments of local courts in this regard in recent years,and then analyzes and summarizes the viewpoints on the nature and effectiveness of such contracts in various judicial decisions to arrive at the Supreme Court.Authoritative cases and judicial interpretations do not produce clear guidelines for local courts at all levels,and the problems that need to be addressed in this paper are the nature and effectiveness of such contracts.The fourth chapter introduces the discrimination on the nature of the the loan guarantee contracts in the disguise of sales in the disguise of sales in the theoretical circle,which is divided into the the Conditional Sale Contract Theory,the Alternative Payment Reservation Theory,the Debt Renewal Theory,the Mortgage Theory,the Assignment Guarantee Theory and the Post-assignment Guarantee Theory.In this chapter,the author concludes that such a contract is a kind of atypical guarantee,and in most cases,when the transfer of ownership is not completed the contract is classified as a Post-assignment Guarantee.For a few cases where the transfer of ownership has been completed,the loan guarantee contracts in the disguise of sales is classified as a Assignment Guarantee.The fifth chapter introduces the problem of the validity of the loan guarantee contracts in the disguise of sales.The first two sections of the first chapter of this chapter are divided into the effective and invalid terms.The second part introduces the process of the effective identification of contracts,and respectively responds to the alleged misconduct of the contract,violation of the prohibition of flow mortgage contract,violation of the property rights statutory and thus concludes that the contract is valid.The third part introduces the analysis of the guarantee effectiveness of the contract.The sixth chapter makes recommendations on the trial of the loan guarantee contracts in the disguise of sales.This chapter first discusses the points of attention for the judge to identify the true meaning of the party's "guarantee",and then states that the judge should reasonably treat the flow flow mortgage clause in such a contract.Finally,it is pointed out that the judge should pay attention to the publicity means of the parties in such contracts.For those who have behavior with public nature,they should be given priority for compensation.