The Research On The Legal Issues Of The Trade Guarantee

With the development of China’s market economy,the demand for informal loan financing has grown rapidly.Especially in the real estate industry,due to the difficulty of financing,the typical guarantee method is complicated and the process is cumbersome,so it is necessary to find a new form of guarantee.In recent years,this guarantee method has often appeared in the real estate field.Its basic feature is that both parties sign a contract for the sale of a commodity house while signing a loan contract.It is agreed that when the debtor fails to repay the debt,the debtor must perform the commodity house to pay off debts.Once this kind of guarantee method appeared,it aroused considerable controversy in the theoretical and practical circles.As a result,there are various names of this kind of guarantee method.It has several titles such as "post-assignment guarantee","sale-type guarantee" and "guarantee-type sale".For the convenience of description,in the following texts,I will refer to it as "sale-type guarantee".In the theoretical and practical circles,there is considerable controversy over this type of guarantee,and even the most basic issues have not reached consensus.Therefore,on the basis of combing the doctrines of various legal scholars,this article attempts to clarify the nature of the sale-type guarantee and the effectiveness of the sale contract in the sale-type guarantee,and then explore the institutional arrangement of such a guarantee method in the future civil code.The content of this article is roughly as follows:The first part analyzes the typical cases before and after the promulgation of the Supreme People’s Court’s Provisions on Several Issues in the Application of Laws in the Trial of Civil Lending Cases(hereinafter referred to as the "Private Lending Provisions"),and concludes that the courts have applied such cases in practice.The different trial thoughts of this article summarize the focus of disputes in the case of sale-type guarantees.The second part mainly discusses the conceptual characteristics and identification of the nature of the sale-type guarantee.The author intends to compare the various viewpoints andtheories in the theoretical world and some related concepts outside the field,in order to reasonably grasp the concept and nature of the sale-type guarantee.The third part is based on the previous research,analyzing the effectiveness of the sales contract in the sale-type guarantee.In this regard,the theoretical world mainly has two viewpoints of valid theory and invalid theory.By analyzing and comparing the two views,the author reached his own views.The fourth part focuses on the realization of the sale-type guarantee and the suggestions for the improvement of the sale-type guarantee system.The law has a natural lag because the rapid changing of society.Therefore,we need to explain the law reasonably or update the law to ensure the healthy operation of society and economy.