The Status Quo, Problems And Judicial Countermeasures Of Buying And Selling Guarantee Contracts In Private Loans

Buy-and-sell guarantee contract in private lending is the product of the development of the times.It comes from private lending.In addition to the loan contract,a sale contract is signed to guarantee the performance of the loan contract.That is,if the debtor fails to pay the debts on time,it will be in accordance with the agreement of the sale contract in order to realize the liquidation of the debts.On September 1,2015,the Supreme People's Court's Provisions on Several Questions of Law Applicable to the Trial of Civil Lending Cases(hereinafter referred to as "Judicial Interpretation of Civil Lending")promulgated the "Yin-Yang Contract" named "Sale and Purchase,Actually Lending".This judicial interpretation provides a strong basis for the People's Court to resolve such cases.The contract of guarantee for sale in private lending is not a real contract for sale.There are mainly three kinds of contract: the theory of guarantee for transfer,the theory of guarantee for subsequent transfer and the theory of promise for repayment of property.As an atypical guarantee,the guaranteed sale contract belongs to the guarantee of debt in a broad sense.The precondition of prohibiting the use of liquidity rules is the existence of a security interest.When the secured creditor's rights cannot be fulfilled as scheduled in the secured sale agreement,the security right holder may request the debtor to transfer the ownership of the secured property.For such disputes,the judicial organs have already responded to them.Local high courts have adjusted them by means of guidance,minutes of meetings and other forms.However,the thinking of hearing is not consistent with the criteria of judgment,and the results of judgment are not the same.The promulgation and implementation of the Judicial Interpretation of Civil Lending has solved many problems,such as the definition of acts and subjects of such cases,the handling of Civil-Criminal disparities in civil lending cases,and the regulation of interest rates and other issues.To replace "blockage" with "sparse" to promote further standardization of private lending,and provide a basis for the unification of referee standards.Such cases are regulated in Article 24 of the Judicial Interpretation of Civil Lending,and the applicable standards and the basis of judgment have been explained.Before and after the promulgation and implementation of the Judicial Interpretation of Civil Lending,two cases of guaranteed sale contract disputes were also brought to trial by the Supreme People's Court,but ultimately different results were obtained.The academic circles have paid much attention to this kind of disputes and had different opinions.The interpretation of Article 24 of the Judicial Interpretation of Civil Lending is also different.The legal structure,legal logic and judgment path of guaranteed sale contract in civil lending still need to be further explored.