The Determination Of The Legal Validity Of The Housing Purchase And Sale For The Purpose Of Borrowing And Lending

This paper is a case analysis type paper.The full text is about August 2015 in Chongqing arbitration committee of the actual housing sale contract dispute.The case around the same housing involved four major legal relations,including leasing,mortgage,lending and remortgage,house buying and selling related to capital borrowing etc.According to the time order,the case development process is as follows:the house belongs to A and B,in 2011 A and B will be involved in housing rental to Wu.Two years later,in the housing rental period A and B will be involved in housing mortgaged to ICBC,the purpose is to guarantee a trade company in the bank’s 22 million loan.After a year of the loan repayment period expires,in the case of no funds to repay the loan,A decide to borrow money,so A signed a loan contract with C company general manager Zhang,and agreed to the housing mortgage to Zhang. Considering the mortgage can not guarantee the full realization of the creditor’s rights,C company requires A B to transferred the housing ownership to C company,while giving the right to buy back the house with the agreed price. Later,because A B not fulfilled the obligations of agreed payment of funds interest and service charges and the house transfer fee by C company advance in the business contract,C company then filed an arbitration commission for arbitration.Arbitration results of the relationship between A B and C company identified as housing sales and trading relationship.But watching from the housing sales contracts agreed interest on funds and service charges,the right of repurchase,the author has doubts about the determination of housing transactions and other parts of the content.Therefore writing this article,focusing on analyzing the case of the legal relationship and what is the relationship between the parties to the housing sales or lending relationship and if the special provisions of the contract should be supported.In order to solve this type of "borrowing and lending for the purpose of housing sale" case to provide ideas.The full text is divided into four parts,about 2.28 words:Part one:Case brief combing.During the duration of the housing lease and mortgage relationship.Housing ownership of a total of people A B first with C company general manager Zhang signed a loan contract,and then with C Company(the buyer) signed a housing sales contract for the purpose of guaranting the loan.After C company fulfill all obligations,while A B has yet to fully fulfill its obligations to produce disputes.The focus of the case mainly include the relationship between the parties is the housing sales contracts or private lending relationships,as well as the special provisions of the contract funds interest and service fees should be paid,etc.Part two:Analysis of the legal relationship of the case.This part mainly solves the following problems:First,A and B in the lease period sell the house,whether the lease relationship is therefore released,Who is the late rent payment object if not removed. Second,Party A and B will be mortgaged to ICBC for a business company to guarantee debt, what effect will the mortgage behavior have on the sale and purchase behavior.Third,Lifting the mortgage for the loan,A B and C company general manager Zhang signed a loan contract,whether the relationship between the parties to form a loan relationship;Fourth, After the signing of the loan contract with Zhang,A B and C company signed a housing sales contracts,whether the housing sales contract was established,etc.Part Three:The focus of the case analysis.The sale of the contract has been totally performed,Why is it agreed A and B to enjoy the right to buy back?Why would the interest loan funds and service fees exist?This part is about:First,from the party’s intention and the actual performance of the contract perspective,combined with other cases on the legal relationship between the parties are clear. Secondly,on this basis,combined with the existing theory to further explore and make judgment on the properties of the agreed capital interest and service charges in special terms and whether it should be supported.Finally think,The reason for the sale of the contract contains the above provisions,because the purpose of the parties is to borrow.However,due to incomplete with the conditions of the establishment of the loan relationship,the lending relationship between the two parties is not established;But the sale of the contract is effective and completed,therefore,the relationship between the two parties should be identified as housing sales contracts.Part Four:Comments on the Arbitration Committee of the award.The Arbitration Committee ruling based on the facts,which is a classic of the reasoning part,there is also need to improve.For C company which exists obviously unfair and takes advantage of another’s perilous state has not been recognized given sufficient reason,Can improve lies in the neglect of the lending relationship has not been identified.To determine the reason for the time when the interest tax is not sufficient and does not support funds interest,service fees can request "in-depth reasoning around etc.This part will combine theory and practice detailed analysis.