Study On The Guaranty Contract Of The Pre-sale Real Property And The Effectiveness Of The Vormerkung Of The Guaranty Contract

Since the introduction of the Urban Real Property Management Law of People’s Republic of China in 1994,the pre-sale real property trading system has been formally established from a legal perspective with the rapid development of the real property market in the Mainland of China.With the popularity of the pre-sale trading system,contract disputes has been arising from the purchase of credit default by the common cause,the process revealed many legal problems to be solved,such as how to define the nature of the future real property,whether the guaranty interest exists or not when the borrower defaults,what the impact on the rights and obligations of the parties to the contract of the Vormerkung is.Sorting out this series of questions relates to the legitimate interests of both parties,but also to the stability and orderly development of the real property and financial order.The paper mainly discusses the following aspects:The first section is set for the basic legal relationship analysis,discussing the pre-sale real property and the credit of pre-sale real property legal relations,which are the basis of pre-sale real property guaranty contract.During the analysis of the legal relationship,one focused on explaining the concept of forward house to clarify the object distinction between the pre-sale and common sale,leading to the difference of content between the pre-sale contract and the common-sale contract.The second is the clarification of the credit of pre-sale real property legal relationship established on the basis of forward sales contract.The third is the analysis of the credit default risk,thus proposing the construction of the reasonable credit guaranty legal relationship.The second section is to undertake the above credit guaranty system,leading to the pre-sale guaranty contract between the buyers and the banks.Due to the special nature of the object of the guaranty contract,the quality of the guaranty relationship leads to the long-term academic controversy,including the view of debt pledge,buildings under construction in charge,transferring guaranty and mortgage.By the comparison between the above views and the guaranty contracts,we can find the lack of discernment of various viewpoints.In the theoretical foundation that the strict distinction exists between the property acts and creditor acts,we claim that the forward house guaranty contract relationship should be qualified as the charge of the future real property,namely the future real property charge contract.Due to the special nature of the guaranty contract object,the established elements are different from the general guaranty contracts.Then,we demonstrate the impact of sale contract and credit contract on the validity of the guaranty contract and analyze the effectiveness of guaranty contracts in force.The third section is the study of the Vormerkung of the pre-sale real property guaranty contract.The Vormerkung has a significant particularity in the registration system of real property,which is across the property law and the obligation law,leading to the cognitive dissonance about its concept,nature,object,effectiveness during the judicial practice.Once the guaranty contract dispute exists,the rights of the parties will be affected.By analyzing the concept and effectiveness of the Vormerkung,the article clears up the essence of the charge Vormerkung in the pre-sale trading is the registration of the guaranty contract or the right of getting the right of charge.By combing our current laws and regulations and the typical cases,the article analyses the effectiveness of Vormerkung of pre-sale guaranty contract and the right of the Vormerkung rights-holder.Finally,the article put forward the recommendations to improve the Vormerkung of pre-sale guaranty contract.