A Study On The Nature And Effect Of The Contract Of Paying Debts By Housing In Private Lending

With the development of China’s economy and society,many civil subjects for simple financing,based on the autonomy of will through the signing of commercial housing sales contract for private lending as a guarantee,the author calls it the housing for debt contract.Article 24 of the provisions on non governmental lending has made clear the guarantee function of the contract of housing for debt repayment,but it has not made clear its nature and effect.Because of this,a large number of contradictions in different judgments of the same case have been caused in the trial practice,which has caused heated discussion in the academic and practical circles.In order to clarify the legal nature and legal effect of the contract and solve the contradictions of different judgments in the same case,this paper is divided into four partsThe first part is the typical cases and the main disputes.Through the three cases before and after the implementation of Article 24,the differences in the court’s judgment of such cases are reflected in the nature and effectiveness of the commercial housing sales contract,reflecting the different positions of the court in dealing with such cases and the main disputes caused.The second part is the legal nature of the contract of housing for debt.In terms of its nature,there are disputes between the theory of guarantee of creditor’s rights and the theory of guarantee of real rights,while in practice there are disputes between transfer guarantee,post transfer guarantee or non typical guarantee of creditor’s rights.In the final analysis,it has an important relationship with whether the commercial housing sales contract has the agreement of sale and purchase.In fact,the contract is a non typical guarantee of creditor’s rights created by specific property rather than the nature of real rights In this contract,the parties may have the agreement and option of both sale and guarantee.The third part is the legal effect of the contract of housing for debt.In terms of its effectiveness,both academic and practical circles hold two opinions respectively.The theory of invalidity holds that the contract is a conspiracy of hypocrisy,contrary to the legal principle of property rights and the rule of prohibition of fluidity,which conforms to the situation of invalidity of the contract;the theory of validity holds that the contract does not conform to the situation of invalidity of the contract.The real purpose of the contract signed by the parties is to guarantee the creditor’s rights,which has the function of guarantee,according to the contract The principle of freedom and the principle ofdichotomy of property and debt are not contrary to the legal principle of real right and the rule of prohibition of fluidity.The author agrees with the latter,and the minutes of the Ninth People’s Congress responds to this.If there is no invalidity of the contract,the atypical guarantee contract has the effect and guarantee function.The civil code also responds to this.In addition,the court often judges whether there is a public opposition effect by whether the contract is filed or registered online.It should be noted that such registration is not mortgage registration,and it is reasonable to judge whether there is a public opposition effect by the third party’s knowledge or not.The fourth part is the realization of the guarantee effect of the real estate debt service contract.Even if the notice has been registered,the creditor has no priority to be paid for the ownership of commercial housing.In the way of liquidation when the security effect of the contract is realized,the creditor has the right of choice when realizing the security right of creditor’s rights,and bears the obligation of compulsory liquidation.When the amount of debt guaranteed is lower than the value of specific property guaranteed,the court should support the debtor’s defense against the creditor by using the rule of fluidity.In terms of the choice of liquidation method,the court shall follow the principle of freedom of contract and respect the party’s autonomy.The parties shall choose to make the arrangement of interest balance.If there is no agreement or the agreement is unclear,the court may adopt the ownership liquidation to balance the interests of the parties.