A Study On The Legal Issues Of The Sale-type Guarantee

The nature of a loan secured by a house sale contract can not be generalized.Article 24 of the Judicial Interpretation of Private Loans confirms the legal relationship of guarantee between the sales contract and the loan contract,but does not indicate its specific nature and legal effect.From the academic point of view,The house sale contract and the loan contract are not related to the termination of conditions,nor to the settlement of the relationship,the sale contract actually provides security for the loan contract.The real right change of real estate in our country takes the registration effect as the principle,so the specific nature of the sale type guarantee should be determined according to the public status of the house sale contract.The sale-type security,which is Advanced notice registration or recorded registration,belongs to the relinquished security,and the creditor has the right of priority;Without public registration belongs to the agreement of relinquished security,only for ordinary creditor’s rights guarantee.In the determination of legal effect,we should distinguish between the creditor’s right action and the real right action.In determining the validity of a claim,it is necessary to liquidate the value of the house and the amount of the debt when the creditor’s rights are realized,so the contract of sale and purchase does not violate the terms of the current mortgage;The act of trust transfer by the parties to a contract of sale and purchase in good faith does not constitute conspiracy and hypocrisy;On the determination of the effect of property right,The sale type guarantee with proper publicity method has the property right of security,which does not violate the principle of real right.