The Study On Legal Issues Of Sales Contract Guaranteeing Private Lending

In recent years,the economic situation has been evolving and unpredictable.Relevant financial policies have also adversely affected loans.However,the market's demand for financing has been continuously expanding,especially in the real estate industry,facing more and more.The financing needs,but it is increasingly difficult to obtain financing from the bank,many real estate developers began to turn to private lending to obtain funds,so the public began to popularize a model of housing sales contracts as a loan guarantee,also Known as the sale and purchase guarantee.A common situation in practice is that the real estate developer signs a “house sale contract” at the same time as or after signing the “loan contract” with the lender,and stipulates in the contract that if the borrower can pay off the debt on time,the house sale contract There is no need to perform,but if the borrower fails to pay off the debt in the current period,it will have to fulfill the sales contract and transfer the ownership of the house to offset the debt.This article will explore this type of trading approach.Because this kind of guarantee mode is free from all kinds of cumbersome guarantee procedures,it is favored by more and more people.It is followed by an increasing number of disputes.The lenders often do not repay the borrower during the term.When the debt is filed,the court is required to perform the house sale contract.However,how the court should deal with such guarantees,because the emerging guarantee model lacks corresponding specific legal norms,so that when the nature and effectiveness of the sale-and-sale guarantees are determined,Judges can only beidentified and judged by choosing the applicable laws and regulations that are related to the case.In this case,the judge will apply the law to the law.Moreover,when a new form of legal behavior has never appeared,how to accurately and unmistakably punctuate its veil is also a difficult point,which will inevitably bring different understanding and character.In addition,due to the wide distribution and large number of courts in China,there are different degrees of differences in the basic professional qualities and professional knowledge of judges at all levels of courts.In all levels of courts,the number of grassroots courts is the largest,and relatively speaking.The level of judges in the grass-roots courts is at a lower level,and the individual differences in the judges' knowledge level and case handling experience are greater,and the trial cases can not avoid subjective judgments.Therefore,different levels of courts and different judges are still inconclusive.The results of the new case processing will inevitably lead to different differences.As a result,the judgment of the court is very different in the outcome when determining the nature and effectiveness of the sale-and-sale guarantee.At the same time,in response to the situation of judgmental chaos in judicial practice,a large number of scholars began to publish articles expressing opinions and conducting extensive discussions,trying to find applicable systems and theories from domestic and foreign civil law system theories,and combining the sale and purchase guarantees.The specific situation is explained and justified.Therefore,what follows is the disagreement and rebuttal of various theories.It seems that there are references and merits,but because of the cognitive bias of the argumentation process,people have to be made.Questioning its correctness.In order to solve the problem of judicial inconsistency in practice,the Supreme Court of the People's Republic of China promulgated the "Legal Interpretation of Private Lending" in 2015,which stipulated in Article 24 that "the parties signed a sales contract as a guarantee for a private lending contract.After the loan expires,the borrower cannot In the case of repayment,if the lender requests to perform the sales contract,the people's court shall,in accordance with the legal relationship of private lending,hear the case and change the claim to the party.If the party refuses to change,the people's court shall rule that the lawsuit shall be dismissed.The judgment made in accordance with the legal relationship of private lending and lending After the entry into force,the borrower fails to perform the monetary debt determined by the effective judgment,and the lender can apply for the auction of the subject matter ofthe sale and purchase contract to repay the debt.The borrower or the lender has the right to claim the difference between the price of the auction and the principal and interest of the loan.Return or compensation." As far as the above provisions are concerned,Article 24 serves as the basis for guiding the court and does not completely solve the legal problems caused by the sale and purchase guarantee.The Supreme Court only made a general statement on how the court hears such cases.The guiding provisions are based on private lending relationships and Given as security for a contract for the sale of private lending,it confirmed the sale of security functions,but the specific way the Supreme Court did not expressly contract for the sale of the effectiveness and the kinds of guarantees.Article 24,paragraph 2,only stipulates a way of handling the subject matter of the sale and purchase contract,that is,the creditor may auction the subject matter of the sale contract for compensation when the debtor fails to pay off the debt in the current period.It is clear whether the creditor has priority in the subject matter.Therefore,many questions about the sale and purchase guarantees have not been solved.For example,what is the legal nature of the sale and purchase guarantee? How effective is the sale and purchase contract? Can the creditor be given priority in respect of the subject matter of the sale contract? In view of the ambiguity stipulated in Article 24,many scholars have engaged in heated discussions on the issue of buying and selling guarantees,trying to explain their nature from different theories through different doctrines and different perspectives.Each holds it.In summary,the theoretical circle is divided into three factions.One group believes that the sale-and-sale guarantee is a property right guarantee.The representative views include “grant guarantee”,“post-grant guarantee” and “real estate mortgage”.The guarantee is a guarantee of creditor's rights.On behalf of the viewpoint,there are“guarantee agreement”,“replacement reservation” and “debt change”.Of course,there is also a group of scholars who believe that the above various theories are not enough to explain the sale and purchase guarantee.The legal characteristics,and considered this kind of guarantee is a new guarantee model.At this point,I believe that many scholars who have studied the issue of buying and selling guarantees are more or less confused and questionable.In the face of different opinions in the theoretical circle and different judgments in judicial practice,we need to calm down and use the facts of specific cases to the application of law and jurisprudence,slowly explore and clarify a clear idea and cognition,and figure out the kind of sale and purchase.The legal essence of the type guarantee and a series of legal issues related toit,use this opportunity to enrich your theoretical knowledge and improve your writing level,and exercise your judgment and logical thinking ability.In addition,the emergence of such a guarantee method inevitably led to a large number of litigation disputes related to it,although the Supreme Court has issued relevant judicial interpretations to guide courts at all levels to hear such cases,but in practice Differences,how to determine what is a sale-and-sale guarantee,how to apply the provisions of Article 24,and how to deal with the subject matter of the sale and purchase contract.In practice,the judgment of different courts is different due to the complexity of the case.The opinions and refereeing results are not the same,and with the constant discussion of the theoretical scholars and the collision of viewpoints,it is difficult to have a unified viewpoint.Therefore,in order to comprehensively solve such problems,the ideological understanding and the referee standards need to be unified.Therefore,the author studies and studies related typical cases in this paper,and puts forward the issues that have not yet been conclusively related to the purchase-and-sale guarantees,as well as a series of doctrines of comparative analysis of academic scholars on the sale-and-sale guarantees,focusing on the more controversial laws.The problem,and then trying to pierce the mystery of the sale-and-sale guarantee,clarifies the legal nature of the sale-and-sale guarantee from the existing theory.After conducting a comprehensive discussion,the author believes that the exploration of the nature of the purchase-and-sale guarantee can be solved in the real right guarantee system of China.It is similar to the real estate mortgage in the property law,but it is different from this.The difference lies in the practice.In the case of the sale and purchase guarantee,in most cases,the borrower and the lender only signed the house sale contract,and did not register the mortgage for the case,that is,the property right was not publicized,so it was legally only before the mortgage of the real estate.Mortgage contract,and the mortgage contract itself does not constitute a security interest,so the author believes that the so-called purchase-and-sale guarantee is only a real estate mortgage without the property rights publicity;then according to the existing judicial interpretation,legal provisions,systems and principles,and then explore the sale and purchase The validity of the sale and purchase contract in the guarantee,and analyze the application of the sale and purchase guarantee in China and the realization of the creditor's rights.In summary,the author through a more comprehensive analysis and analysis,thiskind of trading-type guarantees,although there are guarantees,but in accordance with China's current effective laws and regulations,judicial interpretation,court decisions,theoretical general,basic principles and systems,Due to its structural particularity,the overall guarantee effect of the sale-and-sale guarantee is still relatively weak.Moreover,due to the lack of corresponding means of publicity,the creditor cannot obtain preferential compensation for the housing subject to the case when the creditor's rights are realized.right.Moreover,judging from the trial orientation of courts at various levels in recent years,the judgment of the court also indirectly affects the way in which people engaged in commercial activities choose to guarantee.Therefore,the author suggests that although the sale-and-sale guarantee saves the process of handling real estate mortgages in operation,it is precisely because of the lack of such publicity means that the creditors can not receive preferential compensation for the target houses when they realize their claims.Therefore,in order to maintain and To ensure the realization of creditor's rights,those engaged in commercial activities should still carefully choose the type of guarantee.