Research On Legal Issues Of House Debt Agreement

With the rapid development of the market economy,people’s demand for capital in production and life has increased dramatically.Under the circumstances of their own financial strength,external borrowing financing has become a common practice.Because the forms of borrowing are flexible and diverse,and the number is also very large,housing mortgage agreements or sale-and-sale guarantee cases are one of the new forms.There are many difficult problems in judicial trials surrounding the debt-for-debt case.At present,China does not have a special "Private Lending Law",the provisions on private lending are scattered in the "Contract Law of the People’s Republic of China"(hereinafter referred to as "Contract Law"),"Some Issues of the Supreme People’s Court on the Application of Laws in the Trial of Private Lending Cases" Regulations(hereinafter referred to as "Private Loan Regulations"),etc.Although the“Private Loan Regulations” promulgated in 2015 greatly eased the urgent need for judicial practice,it failed to completely solve the practical problems encountered by courts in hearing such cases.Although the problem is complex,the most fundamental question is: if the loan contract is secured by a housing sales contract,and when the creditor ’s rights expire and the debtor cannot pay off the debt on time,can the creditor perform the contract in accordance with the requirements of the housing sales contract signed by both parties,and use the housing to cover the debt ? To answer this question,you must first define the nature of the house-debt agreement and determine whether the house sale contract signed by the loan contract is valid.Article 24 of the "Private Lending Regulations" actually evades these two issues,and does not give a clear explanation,but only gives a technical trial path.At the same time,the secondparagraph of the same article also stipulates that the subject matter of the auction sale contract can be used to pay off the debt,but the order of payment with other debts is not specified.Debt-for-debt agreement is in fact a post-guarantee guarantee or concession of real property.The courts will follow the trial path of dismissal of the prosecution,which cannot meet the needs of the development of the current market economy,nor does it conform to the trend of the development of security rights in countries around the world.This should still be analyzed according to the specific case: if the real debt of the two parties is expressed by the real intention of the house and the debt,there is no fraud,coercion and other reasons,and the two parties have also registered in accordance with the agreement,you can determine the validity of the housing sales contract;but if If the two parties agree in any contract that the debtor is unable to repay the loan due,the creditor can directly obtain the ownership of the house,which is an "exile clause",or if the signing of a house sales contract as a guarantee is for the illegal transfer of property,the contract should be deemed invalid.If there are no other circumstances,the effectiveness of its security rights should be recognized.At the moment when the Civil Code of China is about to come out,combined with the legislative and judicial development trends of security rights in other countries in the world,it is still necessary to increase the forms of security rights such as concession guarantees and post-concession guarantees in the future,improve the advance notice registration system,and regulate Trial of housing debt agreement cases.