Study On The Validity Of The Contract Of "Buying-and-Selling Guarantee"

In view of the complex procedures of traditional guarantee methods and the characteristics of high cost,when the private lending relationship involving a large amount is formed,the creditor of creditors will generally choose to sign a separate contract for the sale and purchase of the subject matter,which is usually real estate.The parties will agree in the contract to fulfill the contract of sale when the debt is due and repaid.Since the purpose of the signing of such contracts is to promote the debtor's active debt service,while safeguarding the interests of creditors to achieve,and its objective does play a certain role in security,it is academically referred to as a "buy-and-sell guarantee" contract.However,the nature and effectiveness of this form of contract has been widely disputed since its birth.From the point of view of judicial practice in our country,there are also differences on this issue.Therefore,the Supreme People's Court for the unification of the referee,in 2015 issued a private lending judicial interpretation of the issue of such contracts made a number of provisions.However,the judicial interpretation of the nature of such contracts and the effectiveness of such issues do not give a clear provision,it can not really effectively solve the problems existing in practice,the same situation of different judgments still exist.Therefore,this article selects a typical transaction-type guarantee contract dispute case-"Zhu Junfang case" to carry on the analysis.This paper consists of four parts.The first part is the case brief,mainly carries on the brief introduction to the "Zhu Junfang case",then sums up the dispute focus two in this case.It is the determination of the nature of the contract of "buying and selling type guarantee" and the determination of the validity of the contract of "Sale type Guarantee" respectively.The following two parts analyze and discuss the two points of contention in turn.The second part discusses the nature of the contract of "buy-and-Sell guarantee",negates the contract which constitutes the contract of sale and purchase,the contract of sale,the mortgage guarantee contract,the Jean and the guarantee and the post-jean and guarantee contracts,and explains the rationality of the contract which constitutes the settlement of the substitute.The third part carries on the analysis to the "Sale type Guarantee" contract validity.Based on the inconsistency between the inner true meaning and the external manifestation of the parties to this kind of contract,the effectiveness of the two parties is analyzed and judged from two aspects of the external manifestation behavior and the hidden behavior according to the provisions of the general provisions of civil law.The Part IV is an analysis of the views of the court,and gives the viewpoint of this paper: As far as the nature of the contract of "Sale and purchase Guarantee" is concerned,it is considered that it should be a substitute for the settlement of the appointment contract;As far as the validity of such contract is concerned,it is considered that its external performance-"contract of Sale",and the Substitute Settlement Appointment Act as its hidden behavior is effective.