The Law Applying For Sales Or Purchase Contract Of "Pay Debt With House"

With the development of market economy and the accelerating speed of economic operation in China,more and more civil subjects have created varieties of trading patterns according the law of free negotiation for shortening the operation cycle of funds and improving the efficiency of capital utilization.As the rapid development of China's real estate industry and the rapid growth of housing prices,however,“pay debt with house” is really a quickest way to clear off and to take out repayment of financial claim and debt for satisfying different needs of transaction subjects.Therefore,more and more distributes recently were resulted from the agreement to terminate the previous money debt by signing a contract of selling the house or from guaranteeing private lending by signing a contract for selling the house.As the law is not clearly defined on this situation,the Supreme People's court,unexpectedly,could make very different decisions on similar cases,which bring legal workers much confusion in judicial trail and judicial practice.How to identify the sales or purchase contract of “pay debt with house” on its nature,legal basis,type characteristics and application range in law is the foundation for solving the problems of different verdicts in similar cases,so as to provide theoretical support for the development,legal and effective application of such contracts,and to promote the rapid development of the economy.By retrieving thecases,reading the literature,combing the views of the scholars,studying the provisions of the law and drawing on the legislation at home and abroad,to set the following views: because of the difference expressing of the parties,these sales or purchase contract of “pay debt with house” can be divided as the contract with guarantee,the renewal of debt,and the new debt payment;while in the two latter situations,this kind of contract is lawful effective,and justiciable;and then to measure the rights and interests of the parties of the contract and the third party.The structure of this paper has four parts: analyze the cases and put forward the problems,analyze the views of scholars here and abroad and their legal principle,analyze in typology and the interest measurement between the parties.The first part is cases analyzing and problems posing.Firstly,starting from the case of “Tang Long”,the case of No.72,and combining with “Yu Seok retrial”,“Zhu Junfang case”,“case of Yang Weipeng” and other similar cases to introduce the facts of the main cases,and the to analyze the similarities and differences of them.Secondly,according to the facts of the cases and the opinions of the court to conclude the disputed points.Finally,put forward the questions: What are the nature,characteristics and legal basis of the contract of sales or purchase of “pay debt with house”? Is it valid? Is there a separate justiciability? How does it apply?The second part is to combine the views of scholars here and abroad and to analyze their legal principle.With the development of judicial practice and the changes in the expression of parties' meaning,this kind of contract has expended from private lending to previous money debts,it is popular that the parties sign a contract for selling the house and pay the debt by the housing price.On such kind of contracts,domestic scholars take them as mortgage,preservation for paying debt by something,datio in solutum,subscribe of the datio in solutum and pay debt with something;However,there are clear legal provisions in foreign countries and Taiwan region of China that the differences between the expression of the parties have the renewal of the debt and the type of the new debt repayment these two types.Withspecific analysis of the cases in the paper,we can verify the validity of the renewal of debt and new debt payment.The third part is type analysis.On the basis of the second,to make type analysis on the nature of the private loan guarantee,such as,the housing sale contract,the renewal of the debt and the new debt payment.It is mainly defined from the points of its nature,characteristics,composition and value meaning.The fourth part is the measurement of rights and interests between the parties.By determining the type of cases,with the validity of the renewal of debt and new debt payment,to conclude that such contracts have a separate justiciability,according to the verdicts of the Supreme People's court.by measuring the rights and interests of the parties and the third one in the contract to clarify its application effect.