How To Classify The Act Of House Sale As A Substitute For Paying Loan In Legislation

In the field of private lending in China,the act,that two parties sign a contract for the sale of houses as a guarantee for a loan contract?shorter form:the act of house sale as substitute for paying loan?HSSPL??,is really a debt-in-kind agreement as the consensual contract.In the zhujunfang case from bulletin of the Supreme People`s Court?SPC?at 2012,SPC considered initially that two parties in HSSPL had two different kinds of jural relations---the parallel loan contract set conditions for removal of the sale contract of houses,and providing guarantee clause?when the loan can be paid at deadline,the sale contract of house never perform,but if not,perform the sale contract to pay off the loan?does not belong to the provision of lex commissoria prohibition.How to classify the act of house sale as substitute for paying loan in legislation and relevant issues have been a great popular topic for discussion.Although SPC give 24<sup>th</sup> provision to deal with the case of HSSPL in the judicial interpretation about private lending practice,SPC had no any definition of HSSPL and at finally the24<sup>th</sup> provision was criticized.Watching the events above,writer wrote this paper to give their ideas for improvement of the study of HSSPL,which is by collecting three typical cases and analyzing experts`expressions of HSSPL.The whole paper,which is made mainly by the means of case analysis and literature research,has four parts:prolegomenon,the abstract of three typical cases and the three focus in dispute,legal analysis,judgement and suggestion.Except prolegomenon,the main body of other three parts introduces below:The first chapter is to show three typical cases and abstract three focus in dispute.According to the case of ZhuJunfang v.Shanxi Jiahetai Real Estate Co.Ltd,and the other two cases,the writer sort out the same features of HSSPL case,and then give three focus in dispute.The second chapter is to analyze three focus in dispute respectively.Through the analysis,the writer point out:HSSPL has the surface features of house sale contract,but the performance only means that takes real property so as to discharge the debt,so HSSPL is the debt-in-kind agreement;the debt-in-kind agreement of HSSPL is invalid,because it breaks lex commissoria made by real law,the provision of which is to protect debtor from unfair coming performance;according to expressions based on the surface features and substance of HSSPL,then making some complicated compare analysis of among house sale on condition,after-alienation guarantee,appointment of datio in solutum or datio in solutum on condition,and final the writer consider HSSPL as the new debt repayment by proof.The third chapter is to make a judgement of 24^th provision in judicial interpretation about private lending practice,then give some suggestions on legislation and judicial judge according to the above.the writer of the 24^th provision think HSSPL is alienation guarantee or after-alienation guarantee,but I think it is wrong and entirely cannot express the former two,furtherly,it is necessary to abandon the idea of after-alienation guarantee.At the moment,I it is so significant to set the rule of alleviation principle of legal doctrine,to revise lex commissoria,set up the term of datio in solutum,new debt repayment and debt alteration;then keep an open mind of HSSPL,and classify its different kind based on different details,take seriously to acknowledge the act of new debt repayment.