Research On Legal Issues Of Buying And Selling Guarantees

In recent years,there has been a gradual upward trend in disputes over sale-and-purchase guarantees,but there are no clear regulations on sale-and-purchase guarantees in Chinese valid laws currently.In addition,there are many academic disputes on the nature and legal validity of the sale-and-purchase guarantees in theory,and no general opinion has been formed.The trial organs have no uniform standards when trying to buy and sell guarantee cases,so that the phenomenon of different judgments on similar cases frequently occurs,which not only damages the judicial authority on our country,but also adversely affects social order.Therefore,it is necessary to conduct a comprehensive and in-depth study on the nature and effectiveness of trading guarantees.The establishment of the sale-and-purchase guarantee is efficient and convenient,that also a relatively fast financing method of the debtor.This article first analyzes two typical cases of sale-and-purchase guarantee,and finds out the current two attitudes held by the court in the judgment: one is recognition of the loan contract and the sale and purchase contract.It is considered that the sale and purchase contract are contracting that provides guarantee of the loan contract and supports the validity of the mortgage agreement.The other types to deny the sales contract relationship between the parties and only recognizes the existence of a loan contracts relationship between the parties.The sales contract is invalid due to violation of the liquidity contract.In practice,it is of great significance to correctly determine the nature and effectiveness of the sales guarantee.After analyzing the nature and effectiveness of the sale-and-purchase guarantee,this article believes that the sale-and-purchase guarantee is essentially an atypical security right.There is no hypocrisy between the parties,and the sales guarantee will not be invalid because it violates our country’s prohibition on fluidity clause and the legal principle of real rights.Therefore,both at the legal level and injudicial practice,a positive attitude should be taken regarding the effectiveness of sale-and-purchase guarantees.This article puts forward a proposal to include the sale-type guarantee of the civil rights compilation of the Civil Code,but unfortunately the draft of the Civil Rights Code does not explain it,so the judicial practice should overcome the shortcomings of Article 24 of the Judicial Interpretation of Private Lending.A variety of angles and forms into refereeing ideas should be tried when hearing such cases.