On Difficulties Of Judgment In The Case Of The Guaranteed Purchase And Sale Contracts

In recent years,private load disputes in the country have been a blowout growth.The amount of money and the number of people involved are unprecedented.Straightening out the legal relationship of the folk loan disputes plays an important role in the correct judgment of the cases,the maintenance of legal justice,and the promotion of economic development.In the trial practice,the interlacement of the sale contracts and the loan contracts is a typical type of dispute in the private load,in which a contract is signedfor the sale of private load contracts as collateral,also called "guaranteed purchase and sale contract".It is the most difficult judgment with many different opinions.September 1,2015 implementation of the "Supreme People’s court provisions on Several Issues concerning the trial of civil borrowing cases applicable law"(hereinafter referred to as the "Private loadRegulations")does not clear its nature and effect,which leads to the fact that there is no unified standard for the judicialjudgment and even the same case may have different judgments.In the judicial practice,there are a large number of guaranteed purchase and sale contracts,which lead to an endless stream of legal disputes.Therefore,to clarify the nature and effect of the guaranteed purchase and sale contractis not only conducive toclarification of the theory,but also able to unify the judgment standards and achieve fair trial cases.Through the regulation of Article 24 on guaranteed purchase and sale contract,the Private load Regulationsseems to solve the basic legal relationship of this type of disputes and the judicial countermeasureson the surface.But the following questions have not been answered:First,isthe sale ofthe subject matter the true meaning of the parties?Second,how to define the nature of the guaranteed purchase and salecontract? Isit a repossession contract,aconditional sale contract,ora transferring guarantee? How to determine the effectiveness? If it is valid,then the creditorhas the right to petition the court to enforce the judgment after the confirmation;If it isinvalid,how to define its invalid standard? And why can the subject of the contract for the sale be executedasan invalid contractwhen the debtor is unable to fulfill the obligations of the principal payment of the loan contract?Third,in the judicial practice,how to apply theArticle 24 of the Private loadRegulationsin the first instance,the second instance and the executive procedure?This dissertation aims to restore the the true intention of both parties when they sign the guaranteed and probes into problems likewhether the guaranteed purchase and sale contract is in essencea problem of collateral or creditor’s rights guarantee through the analysis of the specific cases and the comparison of the academic disputes.It claims that the nature of guaranteed purchase and sale contract is transferring guarantee,which is neither in violation of statutory real right and the principle of publicity,nor in conflict with liquid prohibition norms.Based on the restoration and comparison and combined with her own trial experience in civil cases as a front-line judge,the author analyzes the practical problems that can not be avoided in the treatment of guaranteed contract dispute and gives hersuggestions.Shehopestohelp to fill the internal logic loopholes of the current judicial interpretation and also provide a useful reference for the judicial practice.The structure of this dissertation and its logical relationships between each partareas follows:The first part introduces the case and the focus of dispute to clear the purpose of this dissertationand the focus of the argument.Through the introduction of the case,itbrings out different views on the same court trial,and then sumsup the focus of dispute and raises the questions:What is the legal nature and effect of the guaranteed purchase and sale contract in the private load disputes between the sales contract and the loan contract? How to define or identify such issues according to the existing legislation? What kind of problems willcome out after the applications to the judges?The second part,based on the concept of guaranteed purchase and sale contract,demonstrates that the intention of trading of both parties in the guaranteed purchase and sale contract is untrue,so it is invalid,that guaranteed purchase and sale contract is a kind of security of thing,and that it is subordinative,supplementary and indemnifictory.It advocates that the guaranteed purchase and sale contract is not the real purchase and sale contract.It refutes and rectifies the wrong cognition and the deviation of the theory on guaranteedpurchase and sale contracts in the circles of theory and practice.It advocates guaranteed purchase and sale contract is neither repossession contract nor conditional contract,and further proves that it is a typical transferring guarantee contract.The third part fully proves that guaranteed purchase and sale contract,as a transferring guarantee contract,is neither in violation of statutory real right and the principle of publicity,nor in conflict with liquid prohibition norms,and strengthens the effectiveness of guaranteed purchase and sale contract.The fourth part,combined with the writer’s experience in private load trials,studies the difficulties in the application of Article 24 of the Private load Regulations and puts forward some feasible suggestions.