Research On The Difficult Problem Of The Security Of Sale Type

In financial regulation forces weakened and market liberalization under the situation of both parties tend to choose more convenient and low-cost way to avoid a mortgage,a typical guarantee and implementation procedure of the registration of the restrictions,in business contract guarantee loan contract this pattern as a new kind of folk financing deals arises at the historic moment,normally with "business model guarantees".Due to the combination of innovation and complexity of this kind of guarantee method born under the independent will of the parties,disputes arise one after another,and the judgment results are chaotic.This paper aims to discuss the difficult problems in the development of the buyer-seller type guarantee with the combination of practical cases and theories,and to standardize it as far as possible under the balance of the interests of both parties.This paper is divided into five parts.As the first part,the author introduces the causes and research significance of the security of sale and purchase.Due to the different contract arrangement will produce different transaction costs,as much as possible to reduce the cost of trading or system,of market transactions have begun to emerge through direct be offset by property right ownership(mainly)on the creditor's rights guarantee form,to avoid pledge,mortgage will encounter this kind of typical real rights for security in the implementation of execution procedure and high cost.As for how to determine the legal nature and effectiveness of the sales guarantee,there is a huge controversy in theory,and in practice,there is also a confused position on whether to support the litigation of sales contract with varied judgment paths or even diametrically opposed opinions.Through the study of this paper,the author intends to clarify this new type of guarantee developed by the subject of autonomy,so as to better play its role in practice.The second part is the empirical research on the buyer-seller guarantee.By sorting out the judgment documents about the buyer-seller guarantee before and after the judicial interpretation of folk lending,it points out that before the judicial interpretation comes into effect,it either directly supports the performance of the sales contract in practice.Either negating the validity of the sales contract and defining it as atypical guarantee;Still have take give give assure or hind give give assure say,clear liquidation obligation;In addition,because there is no loan contract between the two parties,the implicit creditor and debtor relationship is negated.After the judicial interpretation comes into effect,even if the situation of "secured loan by sale" is clear,there are two views in each court that the sales contract is valid or invalid.The former usually holds the contract as the reason for the true meaning of both parties or adopts the "conversion of debt" theory.The latter believes that it violates the prohibition of guarantee of flow or that it is false representation between the two parties.Based on this,it can be concluded that the existing problems mainly include the different nature of legal relationship,the doubtful judgment of the validity of the sales contract and the ambiguity of whether the right to be compensated in priority.The third part is the analysis of the legal interpretation of the nature of the sales-and-purchase type of guarantee,and holds that it cannot be included in the theory of assignment guarantee,mortgage,selective debt and repayment in kind,thus turning our attention to the consensual datio in solutum appointment theory.To be specific,the assignment guarantee shall rely on the complete transfer of rights,so that the guarantor can realize the priority of getting compensation for the collateral.However,the mortgage theory can not satisfy the dilemma of the warning and ordering function of the non-registration of the buy-and-sell type guarantee.The theory of debt in rem holds the view that the inner meaning and expression behavior of the parties concerned are inconsistent,and the sales contract is the false expression of the parties' intention,which does not conform to the inner meaning of the sales contract signed by the parties of the type of sales guarantee.However,there is only one legal relationship in the theory of debt of choice,and the interpretation of the selling-type guarantee as the debt of choice must admit that there is both a buying and selling relationship and a lending relationship between the parties,which is not consistent with the theory itself.Type and guarantee business does not go into the generation of the traditional settlement of concept,if in the generation of discharge concept type explain buy and sell under guarantee booking,generation of material discharge,still as to contract to transfer the ownership of the subject matter for established condition,but the generation of material discharge appointment as contract,agreement reached is binding upon the parties,the debtor is need to perform in accordance with the contract he kind of payment at home.In this way of interpretation,the contract in solutum is inclined toward the direction of commitment,and there are also effective conditions attached,that is,only when the debtor fails to fulfill the repayment obligation within the time limit,the creditor can put forward the requirement of concluding datio in solutum.This approach is more conducive to the clear definition of the theory of sale-type guarantee and the reasonable judgment of judicial practice.The fourth part mainly introduces the confirmation of the validity of the sale guarantee.Firstly,it negates the view that the sales contract is invalid because of the collusion of the parties.At the same time,it affirms the necessity of prohibiting the existence of stream guarantee,but it needs to change the rigid attitude of invalidity.Secondly,according to the net sign record,advance notice registration of publicity and the actual transfer of possession or not to determine whether it has the effectiveness of the third party against the problem.In the fifth part,according to the time nodes before and after the contract settlement,the "sale" type area in the sale type guarantee is divided into the nature of guarantee and the nature of settlement.When dealing with the sale and purchase type guarantee of guarantee nature,we should give priority to the specific contract content instead of sticking to the legal nature of the contract.The security of sale and purchase is a kind of creditor's right,and it can't get priority to be paid.The liquidation obligation should not be a legal obligation,and a "negative list" can be set in the form of judicial interpretation.For the interest imbalance between the parties,the agreement between the parties should be respected before the liquidation,so as to reduce the cost of the realization of the creditor's rights.The latter is outside the regulation scope of article 24 of the judicial interpretation of private lending;The performance of old and new debts can be solved by relevant provisions of the contract law,that is,old debts are not eliminated before the performance of new debts,and old debts and new debts exist side by side.Only when the debtor fails to perform new debts within the expiration date,the creditor has the right to request to continue to perform old debts.The court should respect the contractual freedom of the parties and avoid changing the content of the contract based on its own value judgment.