Research On The Legal Issues Of Sale-and-sale Guarantees

The loan contract secured by the sale and purchase contract is a new type of financing transaction model,which is called "sale guarantee" under the trend of weakening financial control and financial liberalization,and with the booming private credit industry.This type of transaction means that the borrower and the lender sign a loan contract at the same time or before the expiration of the loan contract performance period,the borrower and the lender sign a sales contract,and reach a consensus,when the borrower violates the loan contract Payment obligations,the performance of the contractual performance conditions of the parties to the sale and purchase of the contract,and the aforementioned agreement to guarantee the performance of the loan contract.The transaction form of the sale and purchase guarantee has obvious characteristics in terms of transaction subject,transaction purpose,rights and obligations between the two parties,the way of realization of rights,and the way of fulfillment of obligations.This transaction method is the product of economic development and is also the choice of market behavior.result.Regarding the sale and purchase guarantee,the Supreme People's Court in the "Judicial Interpretation of Private Lending" stipulates that it should be tried according to the private loan relationship during the trial process,but there is no provision for the nature and effectiveness of the purchase and sale guarantee.Scholars have also put forward various views on the nature of trading guarantees.Some scholars believe that it is the "letter guarantee theory",some scholars think it is the "mortgage theory",and some scholars have innovatively proposed the concept of the "post-guarantee guarantee theory",and some scholars believe that the nature of the sales guarantee should be " Appointment for liquidation of surrogates ",and that the sales contract of the sale-type guarantee is invalid by conspiracy.However,the author believes that the sale-and-purchase guarantee has a guarantee function,but the sale-and-purchase guarantee does not have the means of publicity of the real right,nor the priority right to be repaid.The contract itself guarantees a private loan contract.The nature of the sales guarantees varies,and there is no uniformity in their effectiveness.Some views believe that it is not a statutory type of real right,which violates the statutory principle of real rights;some believe that there is no real intention of the sales contract itself,which is a conspiracy to express hypocrisy;others believe that the sale-type guarantee guarantees the expiration If the debt is not fulfilled,the ownership of the subject matter is transferred,which violates the prohibition of liquidation pledge.However,the author does not agree with these views.The legal principle of property rights itself is also questioned,and the sale and purchase guarantee is a credit guarantee loan relationship.Therefore,the above reasons cannot be surely denied the effectiveness of the sale and purchase guarantee.There must be important reasons and values behind the emergence of trading guarantees in judicial practice.The parties 'autonomy should be respected and their effectiveness cannot be easily denied.There are also controversies in the implementation of the trading guarantee,and there are also liquidation and liquidity implementations.The author believes that in order to prevent creditors from taking advantage of their positions to obtain huge profits,liquidation should be the main type,and attribution type liquidation should be the main type.At the same time,the author also elaborated several issues that should be paid attention to when applying the trading guarantee.Not only to distinguish the types of sale-type guarantees,but also to review the authenticity and legality of private loan contracts,and give creditors the option to perform,in order to strengthen the guarantee function of the sale and purchase contracts.