| In private lending activities, currently there is a phenomenon that the parties in order to avoid the debtor is insolvent, often in private lending contract signed at the same time or after the signing of the contract of sale(mainly to the sale of housing),agreed to the debtor can not repay the principal and interest, regarding the implementation of the sale. On the one hand, due to the frequent occurrence of such cases, how to identify where the legal relationship of the parties, the nature and effectiveness of the contract, in what ways and other creditors’ claims will be related to the people’s court referee unity, related to the vital interests of both parties maintenance. On the other hand, it can properly deal with such cases, to prevent false action, a sound security system, promote the healthy social and economic development are of great significance.Firstly, by analyzing typical cases, before the introduction of private lending judicial interpretation, the court treated as different ways to guarantee the sale of private lending cases. Combined with 24 judicial interpretation, the Supreme Court did not explicitly prohibit breakthrough liquid on the terms of the "Property Law", but bypassing the validity of the contract of sale, the provisions of the lender is entitled to judgment after the entry into force of private lending to the subject matter for auction repay debt. In order to guarantee the sale as a loan contract, subject to the legal situation, the lender is still entitled to priority and therefore real estate sales contracts signed with a certain degree of protection for borrowers significance. Next, the paper again after a brief introduction about the guarantee system so that theory, trying to "guarantee-type contract for the sale" in the construction of the theoretical and institutional looking. Finally, the purpose of the contract retroactively, autonomy,justice and other concepts, this paper proposes some inspiration and advice, such as respecting the autonomy of the premise, to clarify the legal relationship; it should not simply be identified for the sale invalid, but also distinguish contract Invalidcircumstances; always with fairness and justice as the highest values, as far as possible and reasonable allocation of the legal risks of both parties to effectively resolve complex disputes. |
