Research On Legal Issues Of Validity Of Trading-based Guarantee

As the growth of the demand for financing,cases exist in private lending that commercial housing sales contract guarantee to the borrowing contract are increasing,but in our country this situation is the lack of corresponding legal norms.The article 24 of Private lending judicial interpretation which is published by supreme people's court regard "business contract guarantee lending agreement" as a loan relationship on some issues of applicable law in private lending cases provisions,but the provision of fuzziness is still unable to solve issues in the trial,therefore Validity of Trading-based Guarantee problems caused extensive concern of theory and practice.The author start analysis from the two controversial trading-based guarantee cases,using the method of case study,comparative study,analysis of business model guarantees,concluding the differences in theory and judicial practice and the causes,at the same time interpret the article 24 of Private lending judicial interpretation,draw lessons from extraterritorial countries outside of region,sort out the business type guarantee case decided the basic train of thought and suggest to build and perfect guarantee system in China.In addition to the introduction and conclusions,the paper is divided into three parts.The first part expounds the two trading-based guarantee cases.Both cases warrant the loan agreement through the commercial housing sale contract,disputes are determination of legal relations between parties,namely the loan relationships or business relationship and whether the business contract is valid.Although the supreme people's court ultimately prove the loan relationship through lending agreement and forms the chain of evidence in the trial,but hold an opposite attitude to the validity of trade contract.The second part analysis Dispute and causes analysis of Validity of Trading-based Guarantee.There are large differences in theory and in practice of whether or not the trade-based guarantee is contrary to the Flow Prohibition,to the Numerus Clausus Principle,to the Mendacious Expression,to the Umgehungsgeschaft and is the real right guarantee or creditor's rights guarantee.And this for a twofold reason.One is different doctrines contains precontract to pay off,transferring guarantee and after-transferring guarantee.Another reason is the fuzziness of article 24 of Private lending judicial interpretation.The third part is the solution of the problem.To construct transferring guarantee system of our country.This part contains three themes.First,the author think trading-based guarantee belongs to transferring guarantee.Second,analysis extraterritorial transferring-guarantee system to get some implications.Third,we should build our country's transferring guarantee system through determine the transferring guarantee system in the civil code compiling,perfect transferring guarantee system of the subject matter for the record registration,using the principal of social ethics to the Flow Prohibition and published case guidance for practice to provide a clear legal regulation.