The Research On Contracts For Sale Of Commodity House As Guaranty

With the rapid development of social economy,financing demand of the market players is also increasing.In the case of private lending,borrowers and lenders sometimes sign a contract for sale and purchase of real estate with the "guarantee" effect to ensure the smooth realization of another loan contract.In such cases,the debtor often signs a contract for the sale and purchase of commercial houses with the creditor and stipulates that "if the obligor defaults and fails to fulfill its repayment obligations,it must fulfill the contract of sale and purchase of the commodity house and if the debtor repayments,the contract for the sale and purchase of commercial houses will not need to be fulfilled." Using sale of commercial housing contracts to secure loan contracts is widely used in practice atypical forms of security.The conclusions about the nature of the contract for the sale and purchase of commercial houses are numerous and varied,and they take hypocrisy as a dividing line.The existing theories mainly include theory of guarantee by the legal system of debt,theory of conditional sales contract,theory of datio in solutum appointments,theory of mortgage and theory of post-transfering mortgage,among those theory of datio in solutum appointments and theory of post-transfering mortgage are most popular.Artical 24 of The provisions of the Supreme People’s Court on the application of laws to the trial of civil debit and credit cases which came into force on 1 September,2015,has make clear the nature of the guarantee contract,that it should be regarded assimilar to the guarantee contract,and its effectiveness depends on the legal relationship of private lending as the main contract,Besides,it stipulayes auction as a way to realize the guarantee.But for the nature of the contract and other specific issues were not answered.The appointment of datio in solutum means that when the parties agree that the debtor fails to perform the obligation,the creditor or debtor must ask for the repayment of the property with a specific object.The commercial housing sales contract shows its hypocrisy from various signs,so as a hypocrisy,the commercial housing sales contract should be invalid.In such case,it’s more appropriate to identify commercial housing sales contracts as datio in solutum appointments,which means it is an atypical real right of security.On the one hand,it can realize the guarantee purpose of the parties,on the other hand,by increasing the rules of liquidation for the system,it can not only avoids conflict with the prohibition,but also plays a role in protecting the rights of the debtor in practice.The rules of liquidation also square with Article 24,paragraph 2,of China’s "The provisions of the Supreme People’s Court on the application of laws to the trial of civil debit and credit cases".In addition,in view of the lack of public indication of the atypical form of guarantee,it can not make use of the existing system to complete the complementing of the requisites of public notice in the case of practice,we can make a reasonable guaranty compensation arrangement to guarantee its priority on the basis of respect for the rights and interests of the existing legal security rights holders.Judging from the legal effect in practice,by bringing the substitute settlement appointment into the scope of legal regulation and making a liquidation provision for it,it is possible to regulate such behavior,and to some extent,it will be able to pull back flawed guarantees.The track of statutory security real rights is beneficial to the market order and the property security of the financing entity.