Research On The Legal Issues Of "Buying And Selling Loan Guarantee"

In recent years,with the rapid development of China’s economic situation and the financial policy,China’s rapid development of private lending,borrowing form has developed a different variety of types,including the parties to sign a contract for loan contract guarantee case is the most typical.Specifically,in the party between the two sides,in order to prevent due to the debtor fails to repay the debt between the debtor or the third party and the creditor shall sign a contract for the sale,agreed:when performing time expires,if the debtor paid on time repayment,then do not have to fulfill the sales contract;on the contrary,if the debtor fails to pay off the debts and it must be in accordance with the contract agreed to continue to perform,the seller(often the debtor,there is the outside of the third person)to deliver the subject matter and complete all the obligations stipulated in the contract for the sale.This kind of guarantee contract occurs frequently in reality,on how to determine the legal relationship between the parties and ensure the validity of the contract,how to realize the guarantee contract and other issues,all over the court judge each one,affect the interests of the parties to maintain their own,is not conducive to the realization of social fairness and justice.Firstly,through the analysis of two typical cases of the Supreme People’s court for retrial,the parties of the two case of loan contract relationship and contractrelationship are established,whether the relationship between case design to the housing contract and the contract is how,and business lending guarantees can be identified effectively? From the discovery of two held by the Supreme People’s court in the judgment when the different attitudes: one is support,namely the establishment of a loan contract between both parties recognized,and the establishment of a contract relationship and contract as contract of loan guarantee,recognition of repossession is effective.Another One is negative,that there is only the relationship of loan contract between the parties,the contract for the sale of the relationship due to violation of the fluidity clause and identified as invalid.The subsequent analysis and discusses the nature and effectiveness of business lending guarantee ".In judicial practice,cognizance of "validity of sale lending guarantee" and its properties of the guarantee contract parties are of great significance.In this paper,the sale of lending guarantee is a guarantee of things in nature,is a kind of atypical guarantee.The guarantee contract is not violation of the prohibition of liquid provisions,does not violate the principle of statutory real right,between the parties nor the regulations of conspire hypocritical.Therefore,legal and judicial practice in certain " business lending guarantees " as the effect of guarantee real right.Finally,in order to achieve the sales type loan guarantee has also made the corresponding analysis,as can the reasonable distribution of both sides The interests of the parties,adhere to the principle of fairness and justice,in order to effectively resolve complex civil disputes.