| To study the legal nature of the sale-type guarantee and its regulatory path,it is necessary to determine the legal evaluation of the nature of the sale-type guarantee,whether the existing legal norms can regulate the new financing method in the practice of the sale-type guarantee,and the judicial How to adjust the existing problems.First of all,to analyze the case of sale and purchase guarantee,after the release of the "Judicial Interpretation of Private Lending",to a certain extent,it resolved the different interpretation paths of the purchase and sale guarantee disputes in judicial practice before its introduction,and even the opposite opinions of the judgment.However,the provisions of Article 24 of the Judicial Interpretation of Private Lending evade the issue of the definition of the nature of the sale-type guarantee,and deal with the dispute of the sale-type guarantee as a legal relationship of private lending across the board.There is excessive protection of the sale-type guarantee debtor to increase The risk of violating the principle of good faith and the reasonable demands of creditors cannot be satisfied.In recent years,in some judgments,the court held that the rigid application of Article 24 should be avoided,but the legal nature of the sale-type guarantee is difficult to determine,making it difficult to unify the application of the article.However,Article 24 of the Judicial Interpretation of Civil Loan still has its merits.For example,the liquidation rules stipulated in the second paragraph of Article 24 are actually of great significance for balancing the interests between the parties.Therefore,it is necessary to determine the nature of the sale-and-purchase guarantee and adjust its standardization path on this basis.In private lending,the intention of the parties in the sale-and-sale guarantee is that it is neither a sale-sale agreement nor a pure guarantee agreement,but a surrogate settlement agreement.In the original payment and other payment methods,if the debtor chooses to perform the repayment obligation,the borrowing relationship between the parties is eliminated,and the creditor also loses the basis for requesting the debtor to deliver the subject matter of the guaranteed sales contract,if the debtorchooses When the subject matter is delivered,the legal relationship of borrowing is also eliminated,and the debtor no longer needs to perform its repayment obligations.Because the debtor can choose the settlement method that is most beneficial to him according to the changes in the objective situation,the establishment of the sales guarantee does not put the debtor in an urgent situation and must lose the ownership of the subject matter,so it is not subject to the liquidity ban.For such disputes,the attribution and liquidation rules should be established on the basis of respecting the parties ’autonomy to balance the interests of the parties and avoid the " legalization of illegal high interest rates."... |
