The Analysis Of Legal Issues For "Real Estate Sale In Form,Loan Guarantees In Essence"

In recent years,a new way of security has emerged in the practice of private lending: the parties provide a guarantee for the loan through the signing of a sale contract.In practice,the loan contract is guaranteed,especially in the form of a contract for the sale of the house,and the corresponding disputes are increasing.In the case of a large number of related sales contracts and imperfect legislative and judicial interpretations,in order to guide the trial work of the national court,the Supreme Court issued the provisions on Several Issues concerning the application of law to private lending cases(the following is referred to as "judicial interpretation of private lending").Judicial interpretation of private lending clarifies that there is a legal relationship between the litigants between the parties,but it does not stipulate the nature and effectiveness of the contract,and the application of the judicial interpretation is not ideal.The "real estate sale in form,loan guarantees in essence" cases are taken as the object of discussion in this paper,combined with the twenty-fourth judicial interpretation of private lending,we explore the legal issues involved in the dispute in order to put forward suggestions for the judicial practice in dealing with such cases and summarize the experience.This article is composed of three parts: introduction,text and conclusion,and the text is divided into the following four parts:The first part starts from the case of "real estate sale in form,loan guarantees in essence" in judicial practice,and induces the characteristics.Next a detailed interpretation of the Supreme Court's judicial respon,namely the twenty-fourth interpretations of judicial interpretation of private lending is made,and thereasonableness of such a regulation is analyzed.At the same time,the twenty-fourth unstipulated contents,namely the nature and effectiveness of the contract of sale,are analyzed its influence on judicial adjudication.The second part is the analysis of the nature of the "real estate sale in form,loan guarantees in essence" on the theoretical level.Through the comparative analysis of the assignment guarantee,the post transfer guarantee and the substitute payment reservation,it is concluded that the "real estate sale in form,loan guarantees in essence",which is similar to the above systems,but it not them.Its essence is an obligatory right,which does not have the antagonism.The third part is the analysis of the effect of the "real estate sale in form,loan guarantees in essence",discussing whether it violates the prohibition of liquid quality and whether it constitutes the false expression.It is concluded that the "real estate sale in form,loan guarantees in essence" does not violate the above-mentioned.Although it is applicable to the rules of liquid property prohibition,it is necessary to limit its scope of application.If the creditor has registered the claim for advance notice,it will be able to obtain counterforce.The fourth part is from the judicial level,we put forward some suggestions on the case of "real estate sale in form,loan guarantees in essence".The trial judge needs to find out the true meaning between the parties,determine whether the contract aims to form the transaction guarantee;at the same time,hold the concept of fair and justice,rationally allocate the legal risk among the parties,and properly handle the interests of the parties.