Research On Legal Issues Of Sale-type Guarantee

In there years,with the Sustainability erupt of social finance,China's real estate industry has also shown a trend of continuous development.In the continuous development of the industry,with the increase in the difficulty of financing in the financial market,the problem of capital flow in many real estate development companies has continued to appear.In order to solve this problem,after continuous exploration,in the field of private lending,real estate development enterprises have discovered a new type of private financing,which is manifested as follows:real estate development enterprises reach private lending agreements by borrowing from natural persons;At the same time,the two parties signed a separate house sale agreement,stipulating a guarantee similar to "if the debtor is unable to perform its repayment obligations after the expiration of the debt period,the house sale agreement is performed to eliminate the debt and debt relationship between the two parties" Terms.In practice,different external forms often appear according to the different purposes and methods of transactions between the parties.A more common situation is that after the parties have completed the above-mentioned debt agreement,they immediately completed the transfer of ownership of the house,processed the ownership transfer registration,and secured the realization of the creditor's rights through the transfer of real estate ownership.If the real estate development company is unable to repay the debt on schedule,The house as collateral belongs to the creditor.Another rare situation is that after the parties have completed the above-mentioned debt agreement,due to subjective and objective reasons,the ownership of the house has not been transferred in time.Instead,it is agreed that when the real estate development company is unable to repay the debt on time,the real estate development enterprise With the obligation to transfer,the two parties often handle advance notice registration or commercial house pre-sale filing registration.These two cases are real estate development enterprises to complete private lending,and the real estate agreed with the natural person to pay off the debt.The first case is the characterization of the enthusiastic discussion of real estate transfers and guarantees in the academic circles some time ago.The"Minutes of the Ninth National Court of Civil and Commercial Trial Work Conference'i(hereinafter referred to as "Minutes of the People's Minutes")conducted a detailed discussion and elaboration.The theoretical framework has gradually matured,and the second case is that there have been more recent practice and theoretical circles.The expression of "taking the sales contract as the guarantee of the loan contract" has been touched,this article discusses the second case.The Dissertation is repartited into four fragments.The first fragment is the introduction.Mainly by revealing the background of the topic of this article,clarifying the research significance of the legal issue of sale and purchase guarantee,analyzing the research status of the focus of this article and narrating the author's research methods,explaining and explaining the basic research elements of this article,and constructing the reader's basic reading cognition.The second fragment is the explanation of the general theory of "buying-and-selling guarantee",enumerating and discussing the concept,characteristics and generating methods of buying-and-sale guarantee.The third fragment is to analyze some existing theories of "buy-and-sale guarantee".Through the analysis of the existing theories,review the deficiencies of the existing theories and demonstrate the negation of the existing theories.The fourth fragment is to demonstrate the establishment of the "pan-real estate mortgage" interpretation path.From the two aspects of the creditor's rights and real estate effects of the sale-type guarantee,the legal elements of the sale-type guarantee are analyzed,and the similarities and differences between the sale-type guarantee and the real estate mortgage are analyzed and compared.The fifth part is to propose the construction and improvement of the"buying and selling type guarantee" system.It starts with discussing the necessity of the building of the buying and selling type guarantee system,and proposes three aspects from the scope of application,the content and form of the contract,and the establishment of the publicity system.