Research On The Contract Of "Sale Guarantee"

In private lending,creditors due to its creditor’s rights and interests maintenance,reduce the cost of insuring and credit risk,in constant groping created a new way of "guarantee",the majority is in the loan contract between parties to sign a business contract,at the same time or after the expiration of the time limit agreed upon in the sales contract lending to the debtor fails to perform the contract to be executed,To transfer the ownership of the subject matter,the subject matter of the contract is the house in most cases,which is called as the "sale guarantee" contract in this paper.Does "other contracts with guaranty functions" in Article 388(1)of the Civil Code cover the contract of "sale guaranty" to be studied in this paper? Before the promulgation of the Civil Code,there were different views on the nature and effectiveness of the sales contract.Even under the provisions of the first paragraph of Article 388 newly added in the Civil Code,the nature of the "sales guarantee" contract is not without controversy.Therefore,this paper mainly focuses on this kind of contract,summarizes its characteristics and the focus of controversy,analyzes others’ identification of the legal nature and legal effect of the contract of "sale guarantee",and summarizes its own views.In the type of contract where the sales contract provides performance guarantee for the loan contract,there is usually no dispute about the nature of the loan contract.As long as a legal and effective loan contract relationship can be proved,the contract is valid.However,the nature and effectiveness of the sales contract are indeed controversial.In the commercial housing sales contract guaranteed loan contract as an example,first of all,in the analysis of the nature of the sales contract,the sales contract is not to distinguish whether to do advance notice registration,are general analysis,but the registration of the sales contract has an impact on the nature of the contract.One is the sales contract that has been registered in advance notice,and the other is the sales contract that has not been registered in advance notice.According to Article 388 of the Civil Code,the establishment of real right for security should have an effective guarantee contract;Second,the real right change to conform to the statutory public method,this paper argues that after the advance notice registration of business contract itself has to guarantee loan contract,in accordance with "other" which has the function of guarantee contract law,and the registration for the third person know function,restricted the ownership of the secondary dispose the power of the subject matter and against a third party,Compared with other creditors of the real rights for security people at the same time have the priority of compensation function,can be considered to have the nature of the real rights for security,and have not been registered business contract is to guarantee loan contract,but because of the without legal real right change formula method to the public,do not accord with the condition of the real rights for security,It does not meet the conditions for the establishment of the security of the real right with the priority of compensation,and it is a kind of mortgage security of the nature of the creditor’s right that takes the creditor’s right of the sale contract as the guarantee,which is essentially an agreement to replace the original payment with other payment methods,which meets the conditions for the establishment of the appointment for datio in solutum.The analysis of the parties’ true intentions shows that no matter whether the sales contract has been registered in advance or not,it does not have the meaning of a sales contract,so it cannot be identified as a conditional sales contract.The system of datio in solutum is a way and means to pay off debts,and it has the nature of materiality.The contract of "guarantee for sale" does not transfer the ownership of the subject matter at the time of signing or before performance.It only has the agreement of paying off debts and the meaning of guarantee,without actual performance,and does not meet the constitution characteristics of the transfer of ownership of datio in solutum.The final analysis shows that it is most reasonable to identify the sale-sale security contract after advance notice registration as atypical security real right,and the nature of the sale-sale security contract without advance notice registration is identified as datio in solutum appointment.There are no more than two views on the effectiveness of the "sales-sale guarantee" contract,that is,valid and invalid.According to Article 23 of the latest Judicial Interpretation on Private Lending,if the sales contract provides collateral guarantee for the loan in the loan contract of others,the court shall judge the case according to the basic legal relationship of private lending.The judicial interpretation mainly ignores the basic nature and legal effect of the relevant sales contract,and does not explicitly mention whether the relevant sales contract is valid or not.Some people think that the "sales guarantee" contract is the external performance of the sales contract,but the internal essence is the guarantee contract,which belongs to the false intention of collusion,so the sales contract is invalid.Some others hold that the guarantee by means of transferring the ownership of the subject matter stipulated in the sales contract is regarded as a liquid contract.Since liquid contract is prohibited in China,the sales contract will be treated as an invalid contract.The appointment for datio in solutum is a consensual contract.During the performance of the sales contract,it has to go through the liquidation process,which is to "return more and compensate less".It is also fair for the debtor and will not allow the creditor to "take advantage".In social life,the "sale guarantee" contract is widely used by people,and it must have its value and advantages.Under the premise of not damaging the interests of the contract parties,the purpose of establishing the sales contract should be respected,and it should not be easily identified as invalid contract.Article 66 of the minutes of the meeting stipulates that the contract with guarantee function cannot be denied easily,and the guarantee type is not limited to the situation stipulated in the Property Law,and the scope of guarantee is expanded,which shows the basic principle of encouraging fair transaction between civil subjects and fully reflecting the respect for the autonomy of the will of both parties.Therefore,the validity of the "sale guarantee" contract cannot be denied easily by one party.The sales contract is valid either for advance notice registration or without advance notice registration,but the effectiveness of the specific terms should be determined according to the specific terms agreed in the contract.If the contract stipulates that the ownership of the subject matter is directly transferred,then according to the principle of differentiation,some provisions in the contract shall be invalid,but other overall effectiveness of the contract shall not be affected by the invalid provisions in the contract and shall also be converted into liquidation process.If contract of agreement loan expires do not perform loan debt,perform contract of sale,act as the money that buy a house with loan,also be to want to pass liquidation process,won’t produce the fluidity contract that transfers droit directly and bring about the case of contract invalidity.