Research On The Nature And Effectiveness Of The Sale-type Guarantee

With the ever-increasing financing needs of many economic entities,Sale-type guarantee has emerged as the times require.This kind of guarantee method derived from practice has advantages such as low cost,high efficiency,convenient and so on,the sale-type guarantee has developed rapidly under the background that the existing guarantee system in our country is not yet perfect.At the current stage,China does not have a specific system of laws to regulate the sale-type guarantee,which have led to a high degree of inconsistency in the trials of the sale-type guarantee disputes by people’s courts at all levels,including the Supreme People’s Court.This paper analyzes 133 valid adjudicative documents selected by searching,and combs out the core issues such as the determination of legal relationship,the nature of sale-type guarantee and the validity of sale contract,which often appear in the trial of such disputes,and deconstructs the judgment viewpoint about the nature and validity of sale-type guarantee by combining the theoretical knowledge on the basis of empirical analysis.On the basis of empirical analysis combined with theoretical knowledge to deconstruct the judgment view on the nature and validity of the sale-type guarantee.There are many interpretation paths for the qualitative nature of the sale-type guarantee.Among them,Transferring Guarantee,Post Transferring Guarantee,Mortgage are more typical.In practice,however,the sale-type guarantee belongs to the creditor’s right guarantee to guarantee the loan contract by performing the sale-type contract,and the signing of the sales contract does not directly enable the creditor of the loan contract to enjoy the real right effect of the subject matter.As for the validity of the sales contract,in the trial of such disputes,the most important thing is to judge the sales contract.Whether it violates the prohibition of exile clause or the legal principle of real right,or Whether it constitutes a false conspiracy.In fact,because the sale-type guarantee is essentially creditor’s right security,not a security interest,of course,it cannot be bound by the legal principles of real rights and the prohibition of exile.It does not constitute a false conspiracy to express that,because it fully meets all the conditions for the entry into force of the contract,it should be effective in the absence of other violations of the legal provisions.At the same time,when people’s courts at all levels try to buy and sell guarantee disputes,they must first make it clear the sales guarantee specifically refers to the distinction between the typical house sales contract and the debt-fordebt agreement,and then examines whether the case received is of this type;secondly,under the premise of respecting the autonomy of the parties,comprehensively confirm the validity of the sales contract and implement the guarantee function through the effective sales contract;again,in order to protect the interests of the creditors,we should make up for the defects of the sale-type guarantee by the way of valuation and compensation,and realize the balance of the interests of both parties;finally,encourage the adoption of legislation to determine the type of sale-type guarantee,and improve the sale-type guarantee system.