Research On The Legal Issues Of The Trading Guarantee

The development of the market economy has promoted the prosperity of atypical guarantees.The form of guarantee that coexists with the purchase and sale contract relationship and the loan contract relationship continues to emerge with market demand.With the announcement of the judgment results of the two cases of the sale-oriented guarantees heard by the Supreme Court,Article 24 of “the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Law of Non-governmental Loans”(hereinafter referred to as the "Private Lending Regulations")were issued,So that the attention of the trading-based guarantee has been raised to the highest point.However,the Supreme Court's self-contradictory judicial decision and ambiguous Article 24 of the “Private Lending Regulations” did not address the core issues touched on by the trading-based guarantee in judicial trials.Controversy continues.the trading-based guarantee touches the core principles of real property rights,which are more controversial,such as the prohibition of liquidity contracts and real property easing.This is worth analyzing and discussing,and is worthy of in-depth research and learning.The emergence of new things will definitely involve qualitative issues.Through the comparative analysis with other similar systems,this article finds that the trading-based guarantee has different characteristics and values from other systems,especially the substantial difference from the Alienation of Guaranty,so it has the need for independent definition.The "Minutes of Civil and Commercial Trial Work Conference of the National Court of Justice" issued in 2019 makes special provisions on the effectiveness of the Alienation of Guaranty and the method of realizing the creditor's rights.It only has reference value for the trading-based guarantee,and the validity of the sales contract,the guarantee effect of the guarantee and the method of realizing the creditor's rights in the trading-based guarantee still have no unified result.Based on the analysis,this article considers that the trading-based guarantee is a security right,and the parties' true meaning is to realize the security through the real estate in the sales contract.the trading-based guarantee is not a false expression of conspiracy,nor does it violate the prohibition of liquidity.At the same time,advance notice registration can be used as a publicity method for sale-type guarantees,giving guarantees priority effect,and providing a functional basis for creditors' right to receive priority compensation in function.Regarding the system construction of the trading-based guarantee,this article discusses from the two aspects of the priority right of settlement and the liquidation system,and puts forward the corresponding system recommendations.