Research On Legal Issues Of "House Purchase And Sale Guarantee"

The new type of guarantee,which is realized by guaranteeing the loan and creditor’s rights in the house sale contract,is the most common form of "purchase and sale guarantee",which can be called "house sale guarantee".There are many forms of such guarantees in practice,and the relevant legal issues have caused extensive debate.Article 23 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases is relatively general.It is difficult to effectively resolve the disputes over the "housing sale type guarantee",and there are still three difficulties in solving the problem of type identification,legal nature and the realization method of creditor’s rights.The promulgation of the "Civil Code of the People’s Republic of China" and its judicial interpretation has made new regulations and guidelines for the guarantee system."House sale guarantee" is widely used in private lending because it can guarantee the realization of creditor’s rights,realize the advantages of convenient procedures and low cost,and has certain institutional advantages and utilization value.Legislation and judiciary should proceed from the principles of guidance and regulation,refer to and learn from relevant feasible systems,and carry out forward-looking explanations and system constructions for "housing sales guarantee".First of all,for the type identification,according to whether it has publicity measures,it can be classified into "visible" and "invisible" types.Secondly,the legal nature of "housing sale-type guarantee" should be regarded as an atypical guarantee,the "visible" one should have the property of property rights,and the "invisible" one only has the property of creditor’s rights.Finally,in order to improve the way of realizing the creditor’s right,on the one hand,the creditor should be given a certain priority to receive repayment,but the priority of the repayment right should be stipulated according to the different publicity methods.On the other hand,attributable liquidation is introduced,and the related liquidation application methods are improved,and a unique liquidation method belonging to the "housing sale guarantee" is constructed in judicial practice.