Research On Providing Guarantee By The Housing Sale Contract

Providing guarantee by the housing sale contract is a new type of guarantee in the private lending,when the creditor and the debtor signing a private lending contract, they sign housing sale contract at the same time to agree on a term that transferring the ownership of the house to the creditor if the debtor failed to pay off the debts,in most cases they will also make the advance sale registration or the advance notice registration.This new type of guarantee is the subject that the theoretical circle and practice study always argues,so the research is necessary. This paper takes the Heilongjiang Shenteng Real Estate Development Co., Ltd. v. Jia Bingyi and Li Yulong private lending appeal case as an example, and combines theoretical research with empirical analysis to research the the problems about the legal nature,the legal effect and the styles of realizing ownership of providing guarantee by the housing sale contract.Except for the introduction, this paper includes six parts.The first part is concerned about the introduction of the case. It introduces the basic situation and judging result of Heilongjiang Shenteng Real Estate Development Co., Ltd. v. Jia Bingyi and Li Yulong private lending appeal case.The second part is concerned about focus of dispute. The focus of dispute of the appeal case are summarized into three points: the legal nature of the behavior that signing the commercial housing sale contracts and making the advance sale registrations,the legal effect of the behavior that signing the commercial sale contracts and making the advance sale registrations,the disposal of the commercial houses.The third part is concerned about the legal nature of the behavior that providing guarantee by the housing sale contract.The behavior that providing guarantee by the housing sale contract is different from the housing sale contract,the typical guarantee and the alienation guarantee.It is conforming to the constitutive requirements of the after-alienation guarantee.Concerned that the after-alienation guarantee have adopted by the judicial in Understanding and Applicability of Judicial Interpretations of Supreme People’s Court on Private Lending Cases.it should be identified as the after-alienation.The fourth part is concerned about the legal effect of the behavior that providing guarantee by the housing sale contract.The real declaration of will is not sale but guarantee,so the behavior doesn’t have the effect of sale contract.As to the effect of guarantee,it depends on the existing law.Because of the principle of legal prescription of real right,the behavior doesn’t have effect of real right but has the effect of obligation.Because that pactum commissorium is outlawed,when providing guarantee by the housing sale contract,if the parties have an agreement on a term that transferring the ownership of the house to the creditor when the debtor failed to pay off the debts and the creditor don’t have the duty of liquidation before the deadline of the debts.This term doesn’t have the legal effect,but other terms are effective.The fifth part is concerned about the styles of realizing ownership.Denying the style of commissorium,and accepting the style of liquidation.The sixth part is concerned about the conclusion of the research.Firstly,analyzing the case,as to the legal nature of the behavior that signing the commercial housing sale contracts and making the advance sale registrations,this paper considers that it should be identified as the after-alienation.As to the legal effect of the behavior that signing the commercial housing sale contracts and making the advance sale registrations,this paper considers that the court shouldn’t recognize the effect of the sale contract,but should recognize the effect of the guarantee.That is to say the court shouldn’t recognize the effect of the real right but should recognize the effect of the guarantee contract,but the agreement that transferring the ownership of the houses to Jia Bingyi and Li Yulong and don’t give the money when Heilongjiang Shenteng Real Estate Development Co., Ltd. failed to pay off the debts,and promise that transferring the ownership of the houses to Jia Bingyi and Li Yulong to sale when Heilongjiang Shenteng Real Estate Development Co., Ltd. failed to pay off the debts don’t have the legal effect.As to the disposal of the commercial house,his paper considers that Jia Bingyi and Li Yulong can’t get the houses but can liquidate the house.Then,giving the judicial suggestions that identifying the the legal nature of the legal act according to the real declaration of will,identifying the the legal affect of the legal act according to the legal rules and disposing the subject matter by imposing the duty of liquidation.