Research On Legal Issues Of Sale And Purchase Guarantee

In recent years,with the rapid development of China’s market economy,more and more phenomena appear in private lending,that is,a case of private loan contract guaranteed by a sales contract.The creditor and the debtor in the signing of a private lending contract,signed a contract for the sale,if the borrower fails to repay those loans and interest,to fulfill a contract for the sale,the practice is mostly in housing sales contracts for the transfer of registration for the creditor,the transfer of housing ownership.The borrower and the borrower want to provide a guarantee for the creditor’s right in the loan contract through this form.However,when there is a dispute,the outcome of the court is often the opposite.In order to normalize the referee’s unification,the Supreme Court promulgated the twenty-fourth judicial interpretation of private lending(hereinafter referred to as the twenty-fourth item).Although the hearing rules have been made,it has many ambiguities in itself.It is only provided for such cases shall be tried in accordance with the legal relationship of private lending,but the nature and effect of the contract of sale is completely keep from talking about.At the same time,the provisions of paragraph second of the auction twenty-fourth,creditors would have the responsibility of the property on the basis of the judgment of the debtor,the provisions of the2 auction income retreating and supplementing,that ownership,creditors cannot obtain the contract for the sale of the subject matter at the same time,the housing auction price also does not have the priority this is the traditional real right of pledge is inconsistent.Therefore,in the judicial trial,the reasons for the decision of this kind of loan dispute are very different and cannot be unified.On the basis of the above problems,there are many different views in the academic circle.The author has combed the academic view of the guarantee type sale contract.Some scholars believe that the essence of a "guarantee type sale contract" is an appointment for a substitute,and the clause is in essence an appointment for a substitute.The housing sales contract is essentially a loan contract between the borrower and the lender before the expiration of the time limit for the performance of the loan,which is in conformity with the requirements of the current mortgage contract and is an invalid contract.Another view is that the "secured sales contract" is called the contract of sale,but in fact,in order to achieve the purpose of guarantee,it is the appointment of the substitute for property,that is,the terms of the pledge.In order to cover up the hypocrisy meaning under the shape of the sale contract,the party is invalid.More scholars believe that there are two legal relations in the legal relationship between the sale contract and the private loan contract.It is legal and effective for the sale contract to exist for the creation of a guarantee function.It is also divided into the atypical security of real right,that is,the post transfer guarantee type,and the guarantee type is realized through the reform of the system of debt.In the author’s opinion,in the judicial practice,there must be important reasons and the existence value behind the massive appearance of the guarantee type sale contract in the judicial practice.All of the choices between the parties to abandon traditional mortgages such as the establishment of the legal guarantee,and signed a contract for the sale of the way to achieve security,is the inevitable result of the sale of collateral has its unique and irreplaceable value,for example,it can reduce the cost of taking the traditional security interests,improve the efficiency of transaction and financing.I think this problem is the category of contract interpretation,not the scope of legislation.It should not simply deny the validity of the contract.Therefore,fromthe perspective of hermeneutics,the author explores the nature of the secured sales contract,seeks the most appropriate interpretation path,and determines the effectiveness of the sales contract,in order to clarify this problem and make it better applied in judicial practice.From the point of view of interpretative theory,the author discusses the nature of the contract of sale,and there are many different views,such as the guarantee of real right,the guarantee of subsequent assignment,and the repayment of property.I don’t need to explain it as an atypical real right guarantee,but it can not be interpreted as an agreement to substitute property.It should be interpreted as a guarantee function based on the contract itself.In the clear nature of guarantee contract,analyze and overcome the obstacles to the realization of the guarantee function of the effectiveness in the contract of sale itself,the author thinks that the guarantee contract type itself does not have the effect of the defect,there is no false meaning,not because of violation of terms and without effect,but not to violate the principle of statutory real right denied the effect of.In recognition of the validity of the contract,both parties of the inner meaning are explored,it can be concluded that both parties really reached sales agreement,there is no false declaration,the two sides expect to sign the contract of sale way to achieve security objectives,there is no conflict between the two.At the same time,if the contract of sale itself guarantee function,in practice there are some problems,such as lacking of appropriate means of publicity,creditors on the sale of the subject matter of the contract without priority.Aiming at these problems,the author also puts forward the corresponding practice conception,which is giving creditors the right to perform the option under the condition.If the creditor chooses to fulfill the sales contract,he must give it the obligation to liquidate.In this way,the creditor’s priority is achieved,the guarantee function of the sales contract is realized,and the debtor is protected from serious interests and does not damage other stakeholders’ interests.