Research On The Contract Of Housing For Debts Repayment

Housing for debts repayment is an emerging trading method spontaneously generated in the practice of market economy.The disputes arising from it are also complex and diverse.The number of cases has increased dramatically reflecting at the judicial level.However,so far,China's civil and commercial law has not established a corresponding system.Different understandings of the judicial practice lead to present the phenomenon of different judgments in the same case.The thesis is based on judicial practice and combines with the results of existing academic research.In addition to the introduction,this thesis is divided into five chapters:The first chapter summarizes the existing problems by combing out the legislative practice and judicial practice of housing debt.In the practice of legislation,there is a lack of direct legal provisions for it on the legal level.Except for Article 24 of the Judicial Interpretation of Private Lending,others are all internal documents of the court,resulting the low level of regulation and the limited scope of application,which cannot fully exert their function of guiding trial practice.There are differences in the understanding of the legal nature and legal effect of housing debts,leading to frequent non-uniformity of referees in judicial practice.The second chapter discusses the basic theory of housing for debts repayment.The concept of it is more reasonable defined in combination with judicial practice.In this article,it is made clear that the research on it is defined in the contract.In this contract,the house needs to have the attributes of availability and existence value,and the debt in the contract is limited to money.The offset method can be as long as it can reflect the agreement of the meaning of the offset.The establishment of a housing debt repayment contract requires that both parties reach an agreement to repay the debt based on the legal and valid original debt,and make different classifications according to different standards.The third chapter discusses the legal nature of housing debts.Due to different setting times and functions,this chapter separately states that the debt payment before and after the expiration of the debt performance period.The former is a kind of atypical security interests.If accompanied by the appearance of the simultaneoustransfer of the ownership of the house,Its legal nature is the transferring guarantee;If it is not accompanied by which,its legal nature shall be attributed to the postguarantee.The latter of the house debt is a kind of new debts repayment.The fourth chapter studies the legal effect of housing debts repayment.It is a non-negotiable contract about the debt payment before the expiration of the debt performance period,which does not violate the statutory principle of property rights,and is also the true intention of the two parties.Meanwhile,in accordance with the provisions of Article 24,paragraph 2 of the Judicial Interpretation of Private Lending,its legal effect shall be valid.Compared with the former,the latter style what the article studies of its legal nature is the settlement of the new debt.It is a kind of consensual contract which came into effect when both parties reached an agreement to repay debts by housing.Whether the real right changes or not does not affect the validity of the contract.The fifth chapter puts forward suggestions for perfecting the contract system for housing debts repayment.For the perfection of the former one,the housing debts contract system before the expiration of the debt performance period,the legal nature of transferring guarantee or post-guarantee should be clarified by means of a judicial interpretation or legislation.It is necessary to establish a “deed of registration system”for the publicity mode,and the existing “pre-notice registration” can be applied to the housing debts repayment set by means of signing a house purchase and sale contract.At the same time,a corresponding evaluation and conversion system should be established in order to realize the demand of housing for debts repayment.As to the perfection of the latter one,it is necessary to respect the true intention of the parties,clarify the legal nature and legal effect of the settlement of the new debt,and further more,set up the implementation method by which the debt can be directly offset.