Study On The Effectiveness Of Guarantee In The Veil Of Sales Contract

In judicial practice,there often exists a phenomenon in which a party enters into a sales contract in addition to a private loan contract.The purposes of the parties to enter into the sale contract are not the same exactly: to guarantee private lending,to terminate the loan relationship and establish a trading relationship,or to substitute the obligation of payment of debt.The Supreme People's Court has issued the "Private Lending Regulations" to regulate the case.Article 24 of the “Private Lending Regulations” establishes the principle of the trial based on private lending contracts and the principle of prohibition of flow guarantee clauses.But there are still certain disputes and problems,such as “what is the legal nature and validity of the guarantee in the veil of sales contract”,“what are the rights of the lender” and “what is the order of realization of rights of all parties”.All these disputes should be cleared in academy.This thesis sorts out the facts and referees of the six typical cases.Some of them are before the promulgation of the "Private Lending Regulations",and others are after.It also summarizes the controversial focus on the effectiveness of the guarantee in the veil of sales contract in judicial practice.In fact,to explain the guarantee in the veil of sales contract properly,the relationship between private lending contracts and sales contracts should not be abstracted into a unified legal relationship model.It should be based on the respect for the autonomy of the party,and the judge should specifically determine according to the different circumstances of the case in the trial practice.Only by focusing on the explanation of specific contracts,piercing the veil of sales contracts and exploring the parties' true intentions and interpreting specific contracts,can the judges grasp the relationship between private lending contracts and sales contracts in a true and comprehensive manner.First of all,the basis of the effectiveness of civil legal acts lies in the free will of the parties.A guarantee in the veil of sales contract is a kind of transaction arrangement that the lenders and the borrowers can flexibly make based on the autonomy of the privates' will.It is neither the conspiracy or the false meaning,nor the violation of the statutory principle of property rights and the liquidity proscription.In the absence of other defects of effectiveness,it shall be deemed to be lawful and effective.In the practice of trials,we should focus on the point of "the expiration of the period of performance of the debt".Grasp the following questions accurately that "When the sale contract is entered into","When is the ownership of the subject matter of the sales contract transferred" and "The ownership of the subject matter of the sales contract is contractually transferred or realistically transferred".It is necessary to examine whether there is a situation in which the debtor is heavily exploited or any infringement on the rights of third parties.Furthermore,the following three situations should be cleared: the sales contract and the transfer of ownership of the subject matter occurs before the expiration of the period of performance of the debt.The sales contract is entered into before the expiration of the performance period of the debt,and the ownership of the subject matter is transferred after the expiration of the performance period of the debt.The conclusion of the sales contract and the transfer of the ownership of the subject matter occurs after the expiration of the period of performance of the debt.Specifically,in the first type of situation,if the subject matter is not actually transferred,the contract of sale is invalid because of violation of liquidity proscription.If the subject matter has been transferred and the redemption is agreed,the legal principle of the concession guarantee shall be applied,and it shall be invalid according to the legal principle of the statutory property right.In the second category,if the parties request to perform the sales contract,they should be tried in accordance with Article 24 of the Private Lending Regulations.In the third category,if the ownership of the subject matter is agreed to be transferred,the loan relationship is terminated and a sales contract is established.If the ownership of the subject matter is transferred actually,it will constitute the settlement of the substitute,thus the original debt will be eliminated.The liquidity proscription will not be violated and it is in line with the principle of fairness.At last,based on the discussion of the nature and effectiveness of the guarantee in the veil of sales contract,this thesis puts forward some suggestions for the relevant referee rules as follows.Firstly,in the trial of disputes over the guarantee in the veil of sales contract,the transaction arrangements formed by the parties should be respected.And the public interest and the interests of bona fide third parties should also be taken into consideration.Secondly,the lender enjoys the conditional right to choose which debt should be fulfilled.In addition,the guarantee in the veil of sales contract that has been registered for advance notice has the effect of coercing against third parties.Thirdly,it is necessary to construct a reasonable liquidation rule and adopt the “disposal type liquidation”.