Research On The Legal Issues Of "buy-sale Guarantee"

In judicial practice,the transfer of real estate ownership or the transfer agreement of related rights is used to guarantee the disputes caused by the realization of the creditor's rights.There are inconsistent understandings in the qualitative,validity determination and handling methods of the relevant legal relationship.One of the more typical types is when the creditor and the debtor sign a commercial housing sales contract at the same time as the loan contract is signed.If the debtor repays the loan on schedule,the commercial housing sales contract will no longer be fulfilled.If the debtor cannot repay the debt,the commercial housing sales contract will be fulfilled.Creditors no longer need to pay the purchase price.This kind of guarantee established by the commercial housing sales contract has many different interpretations or judgment paths in the theoretical and practical circles,and there are big differences in the application of the law.The real problem is that on the one hand,the lender and the borrower agree to transfer the ownership of the collateral to the lender when the debt is due and fail to perform,which is not conducive to protecting the interests of the weaker debtor,and easily leads to the application of prohibition of collateral and liquidity;on the other hand,due to regulations The need for private lending supervision makes it easy to determine that the sales contract is invalid due to collusion and hypocritical expression in the value judgment.Therefore,there are two major misunderstandings in the existing interpretation path,which are beyond the scope of this type of guarantee and refer to the interpretation of the real right of the guarantee.This new type of guarantee has brought many problems to judicial practice and theoretical research,as well as challenges to its nature and effectiveness and how it is tried in judicial judgments.The first part of this article is the introduction of issues.The promulgation of Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Loan Cases clarifies the trial procedures for such disputes to a certain extent,but still leaves some laws The application confusion needs to be resolved urgently.For example,the nature of the guarantee established in a commercial housing sales contract is still uncertain.Although Article 71 of the "Minutes of the National Civil and Commercial Trial Working Conference of the Courts" does not address the specific applicable rules for the establishment of guarantees in commercial housing sales contracts,the construction of the rules for assigning guarantees has inspired how to construct a system of guarantee rules established by commercial housing sales contracts.Article388 of the "Civil Code of the People's Republic of China" "Other Contracts with Guarantee Function" endows the future expansion of the types of security property rights and the innovation of financing tools with foresight and openness in the supply of systems;the second part discusses the use of commercial housing The concept,form of expression and how to define the guarantee of the purchase and sale contract;the third part discusses the nature of the guarantee set in the commercial housing purchase contract.Through research and analysis,it is considered that the nature of the guarantee set in the commercial housing purchase contract is an atypical contract guarantee;The fourth part is about the internal justification of the guarantee set up in the commercial housing sales contract,based on the judgment of the judgment,starting from the expression of the parties' intention,affirming the validity of the sales contract in this type of guarantee,and this type of guarantee does not conflict with the principle of liquidity prohibition and the principle of legal property rights;the fifth part is the external justification for the establishment of guarantees in the commercial housing sales contract,and the guiding path for such atypical guarantees from the Civil Code of the People's Republic of China Analyzing and proposing the future trend of such guarantees,this article believes that the guarantees set in commercial housing sales contracts that have been registered in advance should have priority in compensation,and the guarantees set in commercial housing sales contracts that have been registered shall be subject to advance notice registration.If the third party provides the “buying and selling guarantee” without publicity,it should bear the corresponding guarantee responsibility.