| Private lending is widely used in social life,in which the housing debt contract is an important way of debt repayment.Judicial interpretation provisions of folk lending in 2015,before the Supreme Court decided to guide case room to fulfill the contract effective guiding the judicial practice,after the Supreme Court’s judicial explanation of folk lending rules and protocols of the nine people will not be admitted to a debt contract,according to the difference between before and after treatment to the expiration of the contract effectiveness.The purpose of the parties to reach the house-for-debt contract is to replace the original money payment with other kinds of payment,so that the creditor’s right and debt relationship will be eliminated.The Judicial Interpretation on Private Lending issued by the Supreme People’s Court and the Summary of Nine People replaced the Civil Code as the main basis for adjudication of cases,and did not recognize the establishment of the house-debt contract,which violated the rules for the establishment of the contract in the Civil Code.It violates the general provisions of the Civil Code and the general rules on the validity of contracts to treat the validity of contracts differently according to the time limit of performance.In the case that the Civil Code has provisions on the formation and validity of the contract,it is not appropriate to take the Judicial Interpretation of Private Lending and the Summary of Nine People as the main legal basis for the trial of the case of the house-debt contract.After the expiration of the performance period,there are disputes about the new debt repayment and the datio in solutum under the condition that the subject matter has not been delivered.On the premise of datio in solutum as the demand contract,the theory of creditor protection is adopted in the actual settlement of new debt.In China,there is no legal stipulation that datio in solutum is a practical contract,so it is necessary to respect the autonomy of parties,try datio in solutum in the way of atypical contract in the Civil Code,and recognize the consent of datio in solutum.In the academic circles,there are some opinions on the nature of the contract of debt-for-housing before the expiration of the performance period,such as assignment guarantee,post assignment guarantee,offset reservation,datio in solutum reservation,etc.However,the house-debt contract itself is a legal and effective contract.Starting from the rules of contract interpretation,it is explored that the purpose of the parties to conclude the contract is not to guarantee,but to pay off the debt.If the parties voluntarily attach conditions to the validity of the contract,the nature of the house-for-debt contract should be identified as the conditional datio in solutum.Court to perform before tried to fulfill the contract with house,external to the folk lending judicial interpretation for the body,internal to the protocols of nine people to train of thought,in the show no fair,no real right transfer,based on the premise of no flow pledge apply,deemed as breach of flow pledge clause shall be null and void,expand the use of flow pledge clauses.The court should strictly restrict the application of the terms of flow pledge,observe the purpose and application scope set by flow pledge,and conduct substantive examination on whether the house-for-debt contract constitutes flow pledge.Judicial referee decided that the parties have no real meaning to buy a house,conspiracy to fulfill the contract with house belongs to a false sense of intention,not fully understand the client to occur in bonded with house has not ruled out,and voluntary to accept with room to fulfill the contract constraint,did not fully grasp the true intention of the parties and that contract is invalid,the need to distinguish between false conspires with malicious collusion and take off in the concept of law,To grasp the essence of false collusion is to constrain the intentional inconsistency of meaning,so we should abide by the autonomy of private law. |
