| With the continuous development of China’s market economy,the transaction methods adopted by the market subjects in the financing process are becoming more and more complex,and they tend to adopt more flexible and convenient ways to enhance their own credit,among which the more typical one is that the private lending relationship is guaranteed by the sales contract,when the two parties sign the loan contract,they sign the house sales contract,and agree that if the debtor is unable to repay when due In order to repay the loan,the creditor can request the debtor to fulfill the house sale contract to end the relationship between the creditor and the debtor.Compared with the traditional way,such as bank loan financing,this kind of financing method is more convenient,transaction cost is lower,and transaction safety can be guaranteed.Therefore,it is increasingly favored by market subjects.However,there are no relevant and perfect provisions in the current laws and judicial provisions of our country,and most of them are based on housing,which is controversial in its nature,effectiveness and priority in the process of implementation.Not only in the academic circle,but also in the judicial practice,there are great differences.Therefore,this paper will study this type of transaction.Based on this,the writing logic of this paper is divided into the following six parts.The first part:the introduction of the article,describes the background and characteristics of the transaction mode of sale guarantee,summarizes and comments on the existing theories,and expounds the main research content and basic ideas.The second part:analyze the judicial practice and relevant judicial interpretation of the Supreme People’s Court on the sale guarantee.It is found that the Supreme People’s court has repeatedly and unsteadily identified the nature and effect of such contracts,and the judicial interpretation issued since then has not been clear about the nature and effect of the focus of the dispute.The third part:Based on the empirical analysis of 409 judicial documents,from a large number of judicial decisions,it is found that courts at all levels have a relative tendency to determine the nature of such cases,and found that there are noteworthy case interpretation paths in judicial decisions.In the aspect of validity,there are three kinds of judgment attitudes:valid,invalid and no comment.The focus of the dispute is whether collusion is involved in the expression of false intention,whether it violates the prohibition clause of flowing pledge and the legal principle of real right.Based on the empirical results,this paper explores a reasonable and practical way to identify the nature and analyzes the effectiveness of the sales contract.The fourth part:Based on the empirical results,the nature of buy and sell guarantee is examined again.Through discussion and analysis of the controversial views in judicial practice and academic,combined with the empirical analysis results,comparative law and other relevant theories,it is recognized that the sale guarantee is an atypical form of guarantee with the nature of creditor’s rights,and that it is advisable to recognize the sale guarantee as a collateral liquidation appointment with stop conditions.The fifth part:Based on the empirical results,the effectiveness of the sale contract in the sale guarantee is examined again.Through the examination of the false intention expression and the fluidity contract of the dispute focus collusion,it is considered that the sale contract is the true intention expression of both parties.The structure of the sale guarantee and the pledge clause is not the same.Even if they are found to be essentially the same,the purpose restriction interpretation should be given to the pledge clause,so as to ensure the fairness according to the debtor’s own needs and the liquidation procedure.Therefore,we should affirm the validity of the sales contract.When there is a dispute and the parties request to adjust the contract,we can adjust it by the principle of public order and good custom and endow the creditor with the liquidation obligation to ensure fairness.Finally,some suggestions are put forward for the perfection of the sale guarantee in practice.For judicial judges,this paper summarizes the high-frequency mode and high-frequency key points in the empirical samples,and puts forward suggestions on how to identify the real meaning of party guarantee in the trial practice.For creditors,if they want to protect their rights,they can choose notice registration as the way of publicity.For the legislators,on the basis of exploring the extraterritorial law,it is suggested that the two-month liquidation buffer period can be used for reference to protect the debtor’s right of choice,and when it is appropriate in the future,the extraterritorial false registration guarantee law can be used for reference to adjust and improve the way of publicity in China.As for the debtor,through the supplementary interpretation of the expression of will,the creditor is granted the liquidation obligation to protect the debtor’s rights and interests when the two parties do not have an agreement.For the third party,the balance of interests when it conflicts with creditors is considered. |
