On The Nature And Effect Of The Housing Debt Agreement

Currently,Since the private lending in the market is very active,and the typical guarantee method can not meet the needs of the market,a large number of new types of guarantees have been born.The most typical of these is the sale and purchase guarantee(Housing mortgage loan agreement).Guarantee for loan contracts,Trading-type guarantees usually appear as forms of housing sales contracts.However,since there is no relevant provision in the law,and it is difficult to determine whether the parties have real meaning of buying and selling,the agreement between the parties often has an invalid risk.This situation may damage the autonomy of the parties.Although signing a sale and purchase guarantee contract will pose certain risks to the parties,Because the traditional typical guarantee method will cost a lot of time for the parties,and the guarantee procedures are more complicated,the cost of realizing the guarantee is higher,and the current financial credit system in China is not perfect,Many small and micro enterprises cannot meet the conditions for establishing statutory guarantees,which leads to financing difficulties.They can only resort to the private lending market through some new types of guarantees.At present,the academic and practical circles have different opinions on the nature and effectiveness of the housing mortgage loan agreement.There is no consensus.The author believes that the housing mortgage loan agreement is a kind of reservation of datio in solutum,which is a kind of atypical guarantee.This article mainly analyzes and demonstrates from the following steps:The first is to give a few typical cases.Briefly introduce the case,the reasons and results of the first-instance,second-instance and retrial courts and the reasons for the parties' appeal.Then summed up the controversial focus of the three cases.Secondly,it analyzes the concept of the housing mortgage loan agreement,analyzes the background and specific expressions of the housing mortgage loan agreement in the field of private lending,and introduces the four types of housing mortgage loan agreement currently on the market.Then it introduces the various viewpoints of the academic and practical circles on the nature of the housing mortgage loan agreement and summarizes the arguments,advantages and defects of each doctrine,paving the way for the conclusions drawn by the author.After that,the paper analyzes the relationship and difference between the house debt agreement and the agent settlement reservation.It is concluded that the housing mortgage loan agreement is essentially a surrender settlement appointment.Finally,through the analysis of the nature of the appointment,concluded that the guarantee set by the method of buying and selling commercial houses cannot establish a property right guarantee,and its nature is an atypical guarantee of a debt law neighborhood.The last part is to analyze the legal effect of the house debt agreement.The housing mortgage loan agreement usually exists in the form of a sales contract.Therefore,through the analysis of the house sale contract,it is determined to be a false meaning,and it is invalid because it violates the law.The real meaning of the parties is the agent settlement appointment.Because it does not violate other laws and regulations,it should be confirmed its effectiveness.The paper concludes with an analysis of whether the housing mortgage loan agreement violates the law of fluidity contract prohibition and whether there is suspicion of circumventing the law of fluidity contract prohibition.