A Brief Analysis Of The Sales Contract Of Secured Houses

Paying a debt in kind does not have clear text in the contract law system of our country,but it is very common in thereal life.Among related disputes in civil and commercial cases heard by the courts,most of the debts are houses.In judicial practice,there are two main types of contract disputes,namely,the contract dispute over the payment of debts by housing,and the sales contract dispute of the secured housing.At present,there is no great dispute about the nature and effectiveness evaluation of the contract of paying debt by housing.On the contrary,the educational circle nature is controversial and there are many kinds of explanation theories to sales contract dispute of secured houses,and the evaluation of the validity is also the focus of hot discussion.The author hopes to clearly know the essence and effectiveness evaluation of sales contract of secured houses,provides legal basis for the trial of related disputes.It is divided into four parts.The first part: sales contract of the secured housingand existing problems.First of all,this paper defines this concept,which refers to that agreement between the parties existing in the prior debt cannot be fulfilled according to the contract,the creditor has the right to demand the debtor to transfer the ownership of the houseto pay for the sale contract of the house.Secondly,the paper expounds the problems existing in the sales contract of the secured housing.On the one hand,the academiccircle has a great dispute about the nature of this kind of contract,and there are many kinds of explanation theories,such as the theory of transfer guarantee,the theory of post-transfer guarantee,the theory of real estate mortgage,the theory of debt of choice and the change of debt.On the other hand,there is also a heat discussions about validity of sales contract of the secured housing.The second part: the essential definition of the sales contract of the secured housing.It firstly summarizes and refutes its various interpretations.Transfer and guarantee system is a form of security in real right,which is embodied in the right of ownership of the subject matter of security obtained by the security owner in form.The creditor in the sales contract of house only has the right to require the debtor to transfer the ownership of the house in order to repay the debt when the debtor fails to perform the prior debt in accordance with the contract.The creditor only has the claim of creditor's right,which is quite different from the real right enjoyed by the transferor of the security right.Therefore,sales contract of the secured housingcannot be interpreted as the post-transferring of security.The post-transferring guarantee was created by Professor Yang Lixin.Based on the property of security interest,the preferential right of repayment is given.However,the acquisition of this priority right must be stipulated by law,and the creditor of the sales contract of secured houseonly has the claim right to ask the debtor to transfer the house ownership,and is unable to enjoy the legal basis of the priority right of repayment,so it can not be interpreted as the post-transferring guarantee.In essence,the mortgage of real estate is a kind of preferential right of payment for the discount,auction and sale of the subject matter of the guarantee.The creditor in the secured-type sales contract of the house has the right to require the debtor to transfer the housing ownership topay the debt,and he hopes to acquire the ownership of the subject matter of the guarantee.Therefore,the sales contract of the secured housing cannot be interpreted as mortgage of real estate.In the debt of choice,one party has the right of option.In the sales contract of the secured housing,however,neither the creditor nor the debtor has the full option,so it cannot be interpreted as the debt of choice.The change of the debt has the characteristic that the old debts are extinguished before the performance of the new debt.In the salescontract of the secured housing,the conclusion of the formal sales contract of the house does not result in the elimination of the prior debt.It can only be destroyedif the debtor fulfills the obligation of transferring the ownership of the house to pay the debt,which is different from the effect of the change of the debt,so the sales contract of secured housecannot be interpreted as the change of the debt.Based on definition of appointment of datio in solutum from Sun Senyan,a scholar from Taiwan,and Zheng Yubo,the author believes that its constitutive elements are consistent with the sales contract of secured house.Essentially,sales contract of secured housebelongs to appointment of datio in solutum,which is agreed that contract of datio in solutum would be concluded in the future.Therefore,sales contract of secured house belongs to the appointment contract,whilecontract of datio in solutum is a contract concluded on the basis of appointment.The sales contract of secured house does not have the effect of real right.Otherwise,it does not conform to the principle of property law and the principle of differentiating property rights,and the parties only have a contractual relationship.Based on the essence of datio in solutumappointment,realization of the secured function of the sales contract of secured house is that the obligor is given the obligation to sign contract of datio in solutum by its agreement,that is,transferring the ownership of the house to pay the debt.The third part: the effectiveness evaluation of the sales contract of secured house.Firstly,it expounds that the theory of collusion hypocrisy has four constitutive requirements: that is,declaration of will,difference from the inner purpose,hypocrisy and intention,and conspiracy of the actor and the relative person.Compared with the constitutive elements of collusion hypocrisy,the sales contract of secured houseaccords with the constitutive requirements of collusion hypocrisy.Based on this,the author determines the validity of this contract through the evaluation rules of the validity of the hypocritical act.The house sale contract as the disguised act is null and void,and the appointment effect of datio in solutumas the hidden actshould be determined according to the relevant laws.the key is whether it conforms to the general requirements of the formation and effectiveness of the contract,and whether the main dispute is invalid because of the violation of the lien ban.The author thinksthat the agreement of appointment of datio in solutum does not belong to the lien clause.The agreement on "ownership by the creditor" is a disposition,while the agreement on "transfer to the creditor" in the appointment ofdatio in solutumagreement is a burdensome act.Lien ban forbids disciplinary act rather than burden act,and appointment ofdatio in solutumdoes not violate the lien ban.The fundamental reason why the lien clause is widely prohibited in the world is to prevent the mortgagor from falling into an unfavorable position because of imprudence of mortgagor,and being exploited by the mortgagee because of the profiteering.However,the appointment ofdatio in solutum hidden in sales contract of secured house is not necessarily prejudicial to the rights and interests of the debtor,and the debtor has the option to decide whether the contract is signed,so he is not in a completely weak position;Even if the debt is usury,the law has specified the maximum interest rate ceiling.If the debtor can repay the principal of the loan according to the contract and pay interest at the legal interest rate ceiling,the creditor still has to claim to transfer the house ownership to pay the debt on the grounds that the prior debt has not been fulfilled according to the contract,and the court must first examine whether the prior debt has been fulfilled according to the contract,and it will definitely not support the interest over the legal interest rate ceiling.As long as the debtor returns the principal of the loan and pays interest at the maximum legal interest rate,it can be concluded that the prior debt has been fulfilled according to the contract,the application of creditor will not be supported,and the debtor's rights and interests will not be damaged;Ifthe value of the house is substantially increasing after the conclusion of the contract,which far exceeds the amount of the prior debt,the debtor may still choose to perform the prior debt in accordance with the contract and will not have the risk of losing the house.If the debtor is unable to perform the prior debt in accordance with the contract,we can still claim to cancel the sales contract of secured houseon the grounds of obvious inequity,and the proof of revocation reason can be used to evaluate the housing market value through the procedure of judicial identification.At the same time,hidden appointment of datio in solutum is not necessarily harmful to the rights and interests of other creditors.The creditor only hasthe right to require the debtor to transfer the ownership of the house to pay the debt,and does not have any real right to the house.Other creditors can execute the house without hindrance through the execution procedure in the case of the determination of the creditor's rights.Before the creditor's rights have been determined through the legal proceedings,they may also apply to the People's court to take protective measures against the house,restrict the registration of the transfer of ownership of the house,even if the parties to the contract for sales contract of secured house have completed the transfer of the ownership of the building topay the debt.Other creditors can still claim invalidity of the contract and exercise the creditor's right of rescission relief.The fourth part: protection of rights and interests of debtor of sales contract of secured house.The author believes that,based on the situation of our country,it is necessary to protect the debtor's rights and interests under the condition that the sales contract of secured house is valid.The debtor's protection can be realized through liquidation procedure by drawing lessons from the theory of assignment guarantee liquidation rules.The author suggests that the debtor should be given the option of liquidation and the claim of balance return based on the liquidation result to protect the debtor's rights and interests and to minimize the negative impact of the effective contract of sales contract of secured house.