The Analysisof The Nature And Effect Of Secured Sale Contract

In practice,in order to meet the financing need,people always use the form of sale contract to set guarantee.Because of convenience,low cost,the form is widely used.For this new type of atypical security,in the event of disputes,because there is no specific legal norms,making the court often appear to the different outcome of the judgment,resulting in the judicial is not uniform.In theory,for the nature and effectiveness of the sale contract,there is no uniform view.September 1,2015 the implementation of the Supreme People's Court "on the trial of civil lending cases applicable to a number of issues of the provisions of the law" did not eventually put the controversy settled.This paper focuses on the nature and effectiveness of the Guaranteed Sale Contract.Through the theory and judicial practice analysis,put forward my own points of view.First of all,this article mainly aims at the form of using sale contract to set guarantee.From the legislative and judicial point of view,analyzes the legal provisions of the secured sale contractand leads to the existing problems of legislation.According to sum up the decisions of judicial practice for the type of cases,get the controversy.That is,the different understanding of the nature and effect of the sale contract.Secondly,elaborate on the issue of the nature of the contract.In theory,the nature of the sale contract have a larger controversy between property rights and claims.This article refutes the guarantee as a kind of property right from the attribute of property right and the legal principle of the property right,and compares it with the transferring guarantee,that it has no dominance and exclusive effect of the property right and does not conform to the legal principle of property right.At the same time of denying the property right,this issue should be analyzed in the field of claims and analysis the attribute of the claims of the guarantee.The author analysis the issue between the conditional settlement and the conditions of the sale of the contract.According to the declaration of will,identified this contract as a conditional sale contract.Thirdly,after determining the creditor's rights of the security,analyze the effect of the contract.For the effect of the sale of the contract,the author mainly analyzes the different views in theory and judicial practice.And on this basis,getmy own points.In theory,the sale of the contract is the true meaning of the parties and there is no hypocrisy to represent and circumvent the law.In the judicial practice should also respect the meaning of the parties expressed and support for the implementation of the sale of the contract request.Finally,the author believes that the sale of the contract to set the guarantee,if there is no enough reasons to deny the meaning of sale between the parties,should be supported by the implementation of the sale of the contract request.In the event of a dispute,the basic legal relationship and the sale of legal relationship all should be heard.