A Case Analysis Of Li Xiaoling Vs.Jiancheng Co.,Ltd.(Real Estate Sales Guarantee)

In the case of a sale-type guarantee,issues such as the validity of the sale and purchase contract and the obligee’s priority in receiving compensation have caused many disputes.In the case of Li Xiaoling v.Jiancheng Co.,Ltd.(Real Estate Sales Guarantee),there were controversial issues related to the transaction-type guarantee.In this case,The borrower Xianghua Co.,Ltd.signed a loan contract with the lender Li Xiaoling.When Xianghua Co.,Ltd.failed to repay the loan,Li Xiaoling,Xianghua and Jiancheng Co.,Ltd.signed a "Supplementary Agreement" to extend the repayment period.Sign a house sale contract,and agree that Li Xiaoling has the right to dispose of the house thereafter.Xianghua Co.,Ltd.failed to repay the loan overdue.The three parties signed the Supplementary Agreement II,which agreed to extend the repayment period and agreed that Li Xiaoling had the right to dispose of the house.On the same day,Jiancheng Co.,Ltd.signed a house sales contract with Li Xiaoling and handled the advance notice registration.Xianghua Co.,Ltd.failed to repay the loan,Jiancheng Co.,Ltd.filed for bankruptcy,and Li Xiaoling declared for creditor ’ s rights.The right to dispose clause in the Supplementary Agreement is an agreement on mortgage made by the parties using the house as the mortgaged property,and its validity will not be affected by its conflict with Article 410 of the Civil Code.The right to dispose clause in the "Supplementary Agreement II" is combined with the sales contract to form a post-assignment guarantee that stipulates the obligation of liquidation.The sales contract is not a flow guarantee agreement.The sale-type guarantee is essentially a post-assignment guarantee,and the existence of the right to dispose of the clause does not affect the determination of its nature.The sales contract has the function of guarantee and is subordinate to the main creditor’s rights contract.When judging whether there is any conspiracy or false representation in the sales contract,the main creditor’s rights and debt contract should be contacted.On the whole,whether the main creditor’s right is realized without the need to perform the sales contract,or when the main creditor’s right is not realized to make up for the loan by transferring the ownership of the house,the content shown by the parties to the outside world is that there is no need to perform the obligation to pay the house price.which is consistent with the effect and meaning of the parties,so there is no conspiracy and hypocrisy.The advance notice registration is different from this registration.The right registered with the advance notice is only a special creditor’s right,and this registration will not lead to changes in property rights.Therefore,the sale-type guarantee registered with advance notice does not meet the requirements of Article 68 of the "Guarantee Interpretation" and cannot be granted the priority of compensation.In bankruptcy proceedings,the bankruptcy protection effect of advance notice registration should be discussed in categories.Before the obligor of advance notice registration is declared bankrupt,if the conditions for registration of real estate are not met,the right holder of advance notice registration shall not have the right to retrieve or dispose of the real estate.