Research On The Judicial Practice Of Buy-and-sell Security

As a new type of transaction arrangement in the field of private financing,the parties concerned have high expectation of guarantee,but the judicial practice results show that the guarantee of sale is only a guarantee of creditor's rights rather than a guarantee of real right,which is far from the expectation of the parties concerned.On the one hand,due to the lack of legislation,on the other hand,due to the negative judicial practice,the combination of the two causes that the judicial practice only focuses on the basic legal relationship of loan and does not deeply investigate the subordinated legal relationship of guarantee,and then leads to the lender's willful expansion of rights and the guarantor's malicious breach of contract litigation chaos.Although the sale type guarantee has not obtained the judicial approval,it does not have the guarantee function: the sale contract can be proved to be valid within the scope of locking up the liability property;The sales-oriented guarantee can be proved to be a variety of specific guarantee methods including guarantee,pledge and assignment guarantee,so it has the function of guaranteeing the realization of creditor's rights.The guarantee of sale type is not the innovation of guarantee,but the variation of guarantee.In the legislation,it is advisable to incorporate different forms of guarantee of sale type into the corresponding guarantee method,so as to avoid the confusion of concept and logic.