An Empirical Research On The "Trading-Based" Guarantee Contract

With the increase in the demand for funds by private business entities,and the existing guarantee system in China is still not perfect,the "trading-based" guarantee contract has emerged as a new type of guarantee model and is widely used.It means that in order to guarantee the security of the lender's creditor's rights and urge the borrower to repay the loan,the lender and the borrower sign a sales contract outside the lending contract,or stipulate the nature of the contract of sale in the lending contract,stipulating that the debtor cannot repay the loan on schedule.At that time,debt settlement should be achieved through the performance of the sale and purchase contract to eliminate the creditor-debtor relationship.However,due to the inherent lag of the law,China's law does not specifically stipulate the "trading-based" guarantee contract in a timely manner,so that the people's courts have a highly inconsistent treatment of the "sales and purchases" guarantee contract dispute cases.Through the analysis and research of 120 case-recognition documents in the past six years,it is found that the people's courts rarely mention the nature of the"trading-based" guarantee contract,and also present different opinions among the judgment documents that have determined the nature of ownership.At the same time,there is also a big controversy about whether the "trading-based" guarantee contract is effective or not.The parties'petitions are mainly for requesting the performance of a sales contract or a loan contract.In the case of lending,the parties' complaints were supported.In the case of the confirmation of the sale contract and the performance of the lawsuit,the people's court's judgments are inconsistent,some support the sale of the contract,some rulings dismiss the lawsuit or the judgment rejects the lawsuit.On August 6,2015,the Supreme People's Court promulgated the "Regulations on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases".The introduction of Article 24 fills the normative gaps in the form of such guarantees in China's laws,indicating that the Supreme People's Court has The handling opinions of the sale and purchase contract guarantee loan contract case,that is,the special specification for the case of the "trading-based" guarantee contract disputes of the research object.There are many explanations about the nature of the "trading-based" guarantee contract.The atypical property rights guarantees such as the guarantee and the post-grant guarantee are only academic concepts,and should not be used in the trial practice of guaranteeing private lending contracts with sales contracts.Be identified.The functions of the settlement of the substitutes and the settlement of the substitutes are all paid off,and the function of the "trading-based" guarantee contract is different from the guarantee.The conditional sale contract interpretation also fails to reflect the agreement between the parties regarding the sale of the contract guarantee loan contract.In fact,the "trading-based" guarantee contract is a new form of guarantee of the nature of the creditor's rights,and its guarantee function is realized by fluctuations in the price of the contracted subject matter.Whether the subject matter of the contract rises or falls,the sale and purchase contract can play a guarantee function.In the case that the debtor is unable to repay the loan due,when the subject matter of the contract rises,the lender obtains additional income by claiming the performance of the sales contract;when the price of the subject matter of the contract falls,the lender may choose to require the borrower to perform the loan obligation under the contract..Whether the "trading-based" guarantee contract has an effect affects whether the parties can properly perform the sale and purchase contract.Some people think that the "trading-based" guarantee contract is not appropriate for the hypocrisy of the conspiracy.The contract is a contract between the two parties on the guarantee,and there is no possibility that the conspiracy will not be effective.The "trading-based"guarantee contract does not have the effect of property rights,and therefore does not violate the statutory principle of property rights,and is not adjusted by the law on the prohibition of liquidity.In the provisions of the "trading-based" guarantee,the "Judicial Interpretation" only refers to the signing of a sales contract as a guarantee for a private lending contract.It does not specify the connotation and legal characteristics of the "trading-based"guarantee.When the people's court hears such cases,it must first determine whether the dispute is a "trading-based" guarantee contract.The main judgment route includes whether the sale contract is different from the general contract of sale,and whether it contains the substantive purpose of the secured loan contract.Wait.The provisions of the "Judicial Interpretation" on the "trading-based" guarantee contract should not exclude the trial of the sale contract.If you refer to the handling opinions of the Anhui Higher People's Court on such cases,it is not a kind of trial to compare the sale contract with the loan contract.Reasonable and intelligent approach.In order to make up for the shortcomings of the insufficient guarantee effect of the "trading-based"guarantee contract,the creditor can set up the advance notice registration and realize the creditor's rights to achieve the priority of the right to receive the subject matter of the future auction sale contract.In addition,in order to protect the debtor's property from unreasonable damage,the people's court needs to examine the authenticity of the legality of the loan contract.The interest agreement exceeding the maximum interest rate stipulated in the judicial interpretation shall be treated as invalid,and the liquidation procedure shall be correctly regulated to reach the creditor's debtor.The balance of interests is to highlight the fairness of civil law.