Research On The Nature And Effectiveness Of Guarantees Established By Commercial Housing Sales Contracts

Guaranteeset by house-sailing contract is a common form of transactions in practice.It usually shows that there is a certain debt relationship between the two parties.At the same time,a contract for sale of commercial houses is signed between the two parties.The borrower should transfer the ownership of the commercial houses to the lender according to the House-sailing contract when hecan not repay the loan on time which is a guarantee of the debt relationship.There are great controversies about the nature,effectiveness and the solution for guaranteeset by house-sailing contract,both in the theoretical and judicial practice."Zhu Junfang and Shanxi Jiahe Thai Real Estate Development Co.,Ltd.Contract dispute case " and " Guangxi Jiamei real estate development limited liability company and Yang Weipeng commercial housing sale contract dispute case " respectively publishedon "Supreme People's Court Bulletin" and "People's Justice" are two similar cases but the ruling point is very different."Supreme People's Court Bulletin" and "People's Justice" represent the points of the supreme court and the two cases has been widely concerned.In this paper,I try to select the relevant cases judged by the supreme court and senior people' s court since 2015 to analyze the guarantee set by house-sailing contract.First of all,from the basic cases,abstract and sort out the general phenotype of the guarantee set by house-sailing contract to identify the differences between guarantee set by house-sailing contract and house-sailing contract itself,highlight the characteristics of these kind ofguarantee.Secondly,carding perspective of different theoretical views of the nature and effect of guarantee set by house-sailing contract mainly including the theory of "Transferring Guarantee ","later Transferring Guarantee "," Conditional Trading","Mortgage".Thirdly,I will summarize the judgments and the core points of the selected cases,focus on the trial practice.Finally,based on the Article 24 of "Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases" andtheforegoing analysis,nature of guarantee set by house-sailing contract is the act without real intention.The real intention of the parties is to set a mortgage which is invalid because of lack of certain form of the legal action.The mortgage can not be set up,the creditor does not enjoy the priority effect of security interests.