Research On The House Transaction Contract For Guarantee

House Transaction Contract for Guarantee is a common guarantee mode in the scenario of lending which regulated by Article 24 of Provisions of the Supreme People’s Court on Application of Laws to the Hearing of Private Lending Cases.However,Article 24 only provides procedural provisions for the House Transaction Contract for Guarantee,and does not explain its nature and effect.As a result,there are great controversies about the nature and effect of House Transaction Contract for Guarantee both in theory and in judicial practice.House Transaction Contract for Guarantee with pre-registration or filing is a common and typical form in practice,which cannot be explained by general contract rules and it is worthy of key research.Although the House Transaction Contract for Guarantee has the appearance of a house transaction contract,but there is only one true meaning between the two parties which is the guarantee,and it is not the creditor’s rights but the assignment of the house ownership that actually produces the guarantee effect,thus it is a real right guarantee.House Transaction Contract for Guarantee should be interpreted as the assignment guarantee in atypical real right of guarantee.Although assignment guarantee is not stipulated in the existing laws and regulations,it cannot simply deny its significance based on the legal principle of real right stipulated in the Real Right Law.This rigid legislative mode is not conducive to social development.For this reason,many scholars have also put forward the expansion explanation theory and the legal relaxation theory of real right to correct its existing problems.There is also great controversy about the validity of the sales contract of House Transaction Contract for Guarantee.In fact,the sales guarantee with liquidation procedures will not violate the original legislative intent of the liquid prohibition rule.Therefore the sales contract is valid in this respect.In addition,from the perspective of a rational economic person,the reason why the creditor and the debtor enter into a House Transaction Contract for Guarantee is to obtain certain benefits.Therefore,the creditor usually has a certain intention of buying and selling subjectively,and does not form a conspiracy with the debtor to falsely represent that the sales contract is invalid.And after the pre-registration or filing,it can produce the effect equivalent to the real right publicity,and based on the pre-registration or filing,this act directly obtains the publicity confrontation effect,when the conditions are ripe for the realization of the real right for House Transaction Contract for Guarantee,the priority compensation effect can be obtained according to the claims of the secured party.A special procedure for the realization of House Transaction Contract for Guarantee is liquidation.Because of the additional liquidation obligation to the creditor,house transaction contract is not be invalidated due to violation of the liquid prohibition rules.Both parties can agree on the liquidation method according to the principle of autonomy of will.However,when both parties have not made an agreement or the agreement is unclear,the method of attribution liquidation should be adopted.