The Trade-off Of Alienation Guarantee

With the development of economy and the increase of financing demand,the alienation guarantee is widely adopted,resulting in more and more disputes.By reviewing a large number of judicial precedents,there is a bias in the judicial recognized of different guarantee,which is that,when the guarantee subject is equity,the general decision of the court is Confirm the validity of the contract,and that the debtor has no right to ask for a change of registration,but that the creditor may return the shares after the debt is repaid;when the guarantee subject is the real estate such as housing,court tend to judge contract shall be invalid,the creditors did not gain ownership,for the balance of the debtor,the creditor shall have the right to claim separately in accordance with the legal relation of set in the main contract.The main innovation of this paper is that the original academic research is often based on the alienation guarantee contract,and directly discusses the validity of the contract,the construction of the law and the implementation.The author thought that guarantee as a summative concept,the validity of the contract cannot be determined simply because it conforms to the basic requirements of the alienation guarantee contract.The subject matter,intention,purpose and other factors should still be distinguished,and the validity identification should be obtained after individual analysis.Based on the above understanding,this paper will be divided into four parts.In the first part,the concept of alienation guarantee is briefly described.From the three aspects of whether or not it is false meaning,whether it is illegal behavior or whether it violates the legal principle of property right to analysis the validity and basic standards of alienation guarantee,and provides the basic theoretical framework for the post text.In the second part,taking real estate alienation guarantee as an example,from the perspective of judicial practice,combining the characteristics of real estate and collateral and the mortgage guarantee system,this paper discusses the validity and necessity of the real estate alienation guarantee,and finally concludes that it should negate the validity of the guarantee.Third,take equity as an example to discuss the validity of alienation guarantee.It also analyzes the characteristics and dispute points of the alienation guarantee cases based on the judicial decision,and determines the validity of the equity transfer and guarantee within the scope of the validity determination stipulated in the foregoing article.To determine the validity of alienation guarantee within the scope of the validity criteria defined in the preceding article.The fourth part,distinguish between the alienation guarantee and the sale type guarantee,and the application of article 24 of the judicial interpretation of folk loan.Based on the analysis of this article in the first part,the second and third parts distinguish and determine legal relationship between different subjects of alienation guarantee.The fourth part again distinguishes and applies with alienation guarantee and other atypical guarantee.Through dimensional analysis,more fully understand the concept of alienation guarantee;clear the effectiveness and applicable law.In order to provide an idea for the trial of judicial practice,it is necessary to avoid the inconsistency of the concept of alienation guarantee,which leads to the application of legal errors and unfair trial results.