The Research On The Legal Character Of Guarantee Based On Sales Contract

With the rise of private capital markets,guarantee based on sales contract emerges as a new way of guarantee.Due to the lag nature of legislation,arguments and varied opinions from academic cycle judicial practitioner arise regarding of the guarantee based on sales contract.Theories including Alienation Guarantee,Post-alienation Guarantee,Mortgage,Dation in Solutum,and Conditional Sale vary within the academic cycle.As to the judicial practitioner cycle,they have many dissents even with completely opposite views on this guarantee.Although many researches and explorations had been conducted upon the legal nature of guarantee and judicial practice,most of the researches result with insufficient arguments,and some of them even violet basic principle of Civil Law with little logicality and preciseness.Some researcher mix concepts between Guarantee Based on Sales Contract and Alienation Guarantee,or Contract and Post-alienation Guarantee,hence they mix concepts between consensus on ownership transfer and ownership transferred,or concepts between right in personam and right in rem.The article explores the purpose of guarantee system establishing,from the perspective of nature,characteristics,and development history,with a striving for analyzing the guarantee based on sales contract by the measure of purposive approach so as to generate the conclusion of the guarantee based on sales contract not belonging to the guarantee system.Furthermore,the article concludes that guarantee based on sales contract is a way of assuming responsibility for breach of contract stipulated by creditors and debtors,basing on exploration on various doctrines and judicial practices.Once the nature of the responsibility of breaching contract is clearly defined,problems from relevant cases are readily solved.The article defines the nature of liability for breach contract generating from the guarantee based on sales contract,from the perspective of contract law.Furtherly,showing respect on autonomy of will is the fundamental rule.Exceptionally,if the autonomy of will the parties violets the interests of main body,a liquidation is taking into main consideration in order to protect interests of different parties,and eliminate the existence of violation of legitimate rights of the creditors and debtors while a contract of guarantee based on sales contract being signed.