Research On The Effectiveness Of Secured Housing Sales

The secured house sale is a transaction mode in which a party signs a house sale contract and a loan contract based on the same amount and guarantees the loan contract with another party.The buyer of the house sale contract is the creditor of the loan contract,and the seller of the sale contract is usually the debtor of the loan contract.According to the agreement of the parties,if the debtor fails to pay off the debt at the expiration of the debt settlement period,the ownership of the house subject to the sale and purchase contract shall be transferred to the creditor to settle the debt owed.Although the contract signed by the two parties is called a house sale contract the parties intend to give them the function of guaranteeing the loan contract claims.Since the debtor did not realistically transfer the ownership of the house before the debt settlement period,when the debt was not settled,the creditor had to request the debtor to transfer the ownership of the house based on the house sale contract Therefore,the rights enjoyed by the creditor are claims of obligatory right instead of the current ownership of the house under the contract The creditor cannot directly claim the price of the guarantee object based on the claim of obligatory right to realize the loan contract claim.This is significantly different from the requirement to grant a guarantee or a subsequent guarantee to the creditor to directly obtain the disposal right to the object under the alienation guarantee or after-alienation guarantee.At the same time,the parties do not have the meaning of signing the basic contract,nor do they have the meaning of transferring the ownership of the house as a precondition for the establishment and entry into force of the contract,this is also different from the requirements for a substitutionary performance prearrangement as a practical contract.Therefore,it is unreasonable to characterize the secured house sale as a alienation guarantee,after-alienation guarantee or substitutionary performance prearrangement.Secured house sale is not guarantee actually.Conceptually,the "guarantee",in the secured house sale is neither a third party's credit nor a specific property,and is not in accordance with the definition of the claim's guarantee.From the perspective of legal characteristics,the secured house sales contract has the dependency and supplementality with respect to the loan contract,but the it is not enough to guarantee the realization of the loan contract credit.The "guarantee" in the secured house sale does not match with the guarantee of creditor's rights in it's legal characteristic.Therefore,it is reasonable to believe that the secured house sale does not have a qualitative identity with the guarantee of creditor s rights.It is appropriate to apply the Contract Law and the Property Law instead of the guarantee law norm when judging the validity of a secured house sale contract.Secured house sale is not a guarantee of creditor's rights,nor does it create a new type of security interest.Therefore,it doesn't violate the numerus clausus in the Property Law.Article 24 of the Judicial Interpretation of Private Lending Credits imposes a liquidation obligation on the parties,which further avoids the reduction of the secured house sale contract as a fluidity contract in violation of the law.In essence,secured house sale contract is signed by both parties of the loan contract to secure the creditor's rights,and exists as a means of assisting the realization of creditor's rights.Although the two sides do not actively pursue the performance of the sales contract,they do not hinder the expression of the true meaning of the parties.Secured house sale contract isn't the collusion in false declaration,but rather a true meaning of the parties.If there is no damage to the interests of the state,society or third parties in the contract,the validity of the sales contract should be recognized in principle.However,due to the failure to complete the corresponding property rights disclosure,the legal effect of the property rights change can not be based solely on the housing sales contract.