Research On The Nature And Effectiveness Of Sale-type Guarantee

Sale-type guarantee refers to a new type of guarantee that the parties in the private lending relationship sign a loan contract at the same time or after,and then sign a sale contract to guarantee the performance of debt.Due to the lack of relevant legal provisions and the lack of awareness of the parties to the sale-type guarantee,the contract of sale is separated from the contract of private lending.When the debtor fails to fulfil the due debts,creditors often appeal to the people's court solely on the grounds of disputes in the contract of sale,which leads to the people's court directly hearing the contract of sale,resulting in a lot of contradictory judgment results.Article 24 of the Provisions of the Supreme People's Court on Several Questions Concerning the Application of Law in the Trial of Civil Lending Cases(Interpretation of Law No.18[2015]makes uniform provisions on such cases from the judicial procedure.It has been fully recognized that the sale contract is only a means of guaranteeing the civil lending relationship,and it has subordinate nature and can t be directly prosecuted for the sale contract.However,the specific nature and effectiveness of the sale-type guarantee are still unclear.As for the nature of sale-type guarantee,there are many explanatory paths in the academic circles,such as "post-assignment guarantee theory","pan-mortgage theory","assignment guarantee theory","liquidation on behalf of property reservation theory"and"creditor's rights guarantee theory".However,under the principle of legality of real right,due to the lack of corresponding means of publicity,no matter which way of interpretation,it can only explain that the security of sale type belongs to the nature of creditor's rights,and it can t explain that this kind of security belongs to the nature of real right.Accordingly,the theory of creditor's rights guarantee is more appropriate in terms of the nature of sale-type guarantee.Considering the principle of good faith and the principle of autonomy of will,we should not easily determine the invalidity of sale-type guarantee.In theory and practice,the biggest challenge faced by sale-type guarantee is whether it violates the legal prohibition,that is,the prohibition of exile.In this regard,individual judgments should be made on individual cases.However,as a guarantee of the nature of creditor's rights,the sale-type security does not have exclusive effect,and the security holder can't obtain superior status over other creditors in the sale of the subject matter.Therefore,in order to safeguard the interests of creditors,on the one hand,it gives creditors confrontation effectiveness by adding publicity procedures,namely advance registration;on the other hand,it adds liquidation links in the realization of security,so as to avoid the conflict with the prohibition of exile,and tries to incorporate the sale-type guarantee into the category of atypical security interests through customary law.