The Analysis Of Effectiveness For "Sale In Form,Loan Guarantee In Essence"

The "sale in form,loan guarantee in essence" is a new guarantee method,which is created by the increasing demand of the market parties.The main purpose is to ensure the effective realization of the creditor's rights through the combination of the existing legal norms.However,when the two parties turn to the judicial settlement for the dispute which cannot be reconciled by themselves,whether the contract can be recognized and performed by the court is greatly different due to the vagueness or even the absence of the relevant laws.In view of the above,article 24 of the legal interpretation No.[2015]18 specifically addresses this issue,but it doesn't touch upon the core issue of the dispute——what is the validity of the sale contract? Therefore,the difference of the legal application and the result of the judicial practice regarding this issue in the judicial practice has not attributed to the consistent with the introduction of the provision.On the basis of combing the judicial judgment and the existing relevant theories,the paper analyzed and responded to the focus of disputes on the validity of the sale contract,and accordingly confirms the validity of the sale contracts,which can be divided into the validity of real right and the validity of creditor's right due to whether or not the contract was registered and what kind of registration was adopted.The first part of this paper elaborated the motivation and the main mode of "sale in form,loan guarantee in essence",and clarified that the criterion of guarantees is the guarantee features.The premise of dispute about the validity of the "sale in form,loan guarantee in essence" is whether the property of the sale contract is the guarantee.There is no specific identification of guarantee in China's existing laws,so it is necessary to clarify the guarantee features as the screening standard of guarantee.In addition,according to whether or not the sale contract is registered and the nature of register,there mainly have the sale contract that via advance notice registers,the sale contract that via putting on record registers and the sale contract that did not register 3 kinds of modes.Moreover,the nature and action of registration will directly affect the identification the nature and the effectiveness of the sale contract.The second part of this paper determined the nature of the sale contracts under different modes.Through the combing and analysis of various theories,the reasons for clarifying the nature of the dispute are mainly focused on three aspects: the absence of guarantee screening standard,the neglect of the role of registration,and the hindrance of creditor's right guarantee to the accurate characterization.Combined with the security screening criteria of the first part and the existing relevant legal provisions,it is determined that the mode of sale contract registered with advance notice has the guarantee features,so its nature is atypical real right of guarantee.Due to the lack of supplementary effectiveness,the mode of sale contract registered on record can only be characterized as conditional datio in solutum with certain guarantee function in fact.The unregistered sale contract is characterized as conditional datio in solutum.The third part of this paper analyzed and determined the validity of the sale contract under different modes.The dispute on this issue mainly focuses on whether it violates numerus clauses principle,the prohibition of fluidity rule,and whether it constitutes conspiracy to express false intentions and beyond-law.On the premise of clarifying the legal nature of each mode,we should respond to the focus of the problem pertinently.On the basis of the purpose of numerus clauses principle,the scope of application of the prohibition of fluidity rule,and the existence of the effect meaning between the parties,The sale contract in each mode is valid.Among them,the sale contract registered in advance notice has priority effect as atypical real right of guarantee,while the sale contract registered in advance notice and unregistered sale contract only have the effect of creditor's rights.The fourth part of this paper is mainly to ensure the fair application of the "sale in form,loan guarantee in essence" under the existing legal order.The effective recognition of the sale contract cannot be separated from the basic legal relation——the loan contract.Therefore,while acknowledging its effectiveness,the value of the contract should be limited by the liquidation principle,and the excessive guarantee is avoided.Moreover,in order to respect the Autonomy of the parties and protect the interests of the third party,the publicity system should be continuously improved,and some valuable special movables and rights can be incorporated into the scope of the registration for publication to promote the continuous development of the market economy.