Study On The Legal Issues Of The Agreement Of Paying Debts By Housing

In the process of market economy development in China,some civil subjects,in order to improve economic benefits,have created a new way of financing guarantee based on the basic principle of autonomy of will,that is,before the expiration of the debt performance period,the creditor and the debtor or the third party sign a house sales contract,which stipulates that when the debtor does not perform the debt,the house will pay off the original debt.It is called "the house to pay off the debt agreement" ”?The agreement of housing for debt involves complex relationship of creditor's rights and debts,and the property for debt is a real estate with high value,so it is easy to have complex disputes in practice,and the number of such cases is also growing.At present,the law of our country has not made clear and systematic provisions on the agreement of housing for debt,scholars have different understanding on the agreement of housing for debt,and courts at all levels have made different judgments on such cases.The author is based on the judicial practice cases and combined with the existing academic point of view for research.This paper consists of the introduction,the main body and the conclusion,of which the second part to the sixth part are the main body.The second part gives an overview of the basic theory of the agreement.Combined with the theoretical research and self understanding of the current scholars,this paper summarizes the concept of the agreement of housing for debt,and distinguishes the agreement of housing for debt from the similar concepts such as pledge clause,payment by substitute,offset and so on.In addition,through the analysis of the real estate debt service agreement cases in practice,this paper summarizes the different forms embodied in the real estate debt service agreement,such as "both parties sign the housing sales contract and the loan contract at the same time","both parties agree on the real estate debt service agreement in the loan contract",etc.,and analyzes the manifestation of the real estate debt service agreement.The third part is based on the current legislative and judicial status of the housing for debt agreement in China.This paper mainly analyzes Article 24 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases and Article 45 of the minutes of the national court's civil andcommercial trial work(Fa [2019] No.54)on the definition of the agreement of housing for debt.At the same time,the author uses the case analysis method,based on the case data of the real estate debt service agreement retrieved from the websites such as the no litigation app and China judicial document network,and summarizes the judgment rules of different cases.In this part,based on the analysis of the cases,the author thinks that there are differences in the nature and effect of the agreement of housing for debt repayment in practice,and there are different judgment results in the choice of creditor's rights and the realization of creditor's rights when the debt is not performed.The fourth part systematically expounds the nature of the agreement.First of all,this paper introduces and comments on the current theory of the nature of the real estate debt service agreement in China.On this basis,it puts forward that the nature of the real estate debt service agreement should be classified.That is to say,according to the standard of whether the agreement has the intention of guarantee,the agreement can be divided into two parts: one is the agreement of real estate for debt guarantee,the other is the agreement of real estate for debt repayment,and the other is the agreement of real estate for debt repayment.The fifth part discusses the effect of the agreement of paying debts by housing.This part introduces and clarifies the theoretical disputes about the validity of the agreement of paying debts by housing.It holds that the agreement of paying debts by housing is not a kind of pledge ban and collusion of hypocrisy.The legislation also does not deny the effect of the agreement.On the basis of clarifying the disputes,this paper divides the validity of the agreement into two parts: the effective agreement and the defective agreement.In the sixth part,based on the type analysis of the nature of the agreement,the paper discusses how to realize the debt of the agreement.When the original debt is not performed,the creditor has the right of choice,and both parties have no effect against the third party before transferring the subject matter.The creditor should be responsible for the liquidation obligation in the secured type of house to house agreement;the liquidation type of house to house agreement is to repay the old debt with the new debt,so both parties should agree on the liquidation in the agreement.If there is no agreement,the court should review the amount of the original debt.Finally,under the principle of civil law fairness and autonomy of will,therights and obligations of both parties should be reasonably distributed to effectively resolve disputes.