| In the guiding case no.72 issued by Supreme People’s Court,parties signed a loan contract and a house sale contract for the same payment.In the contract,they agreed that if the debtor fails to repay the loan on schedule,borrowing principal and interest will be converted into purchase money to fulfill the contract.In this regard,Supreme People’s Court fully implement the principle of freedom of contract in civil law.In the judgment process,the true meanings of the parties were fully respected in legal qualitative,and the involved "real estate sales contract" was eventually found to be valid based on the existing contract law and debt law rules.Meanwhile,Supreme People’s Court tried to explore a new path for dealing with such "housing mortgage debt" agreement dispute.However,there are many places worth discussing in the legal construction related to the case,"housing mortgage agreement" nature,the specific legal relationship formed between the parties.Moreover,not only the legitimate rights and interests of the parties will be seriously affected by the inconsistent trial rules which will result in difficulties to realize the fairness and justice of the law,but also this phenomenon has serious adverse effects in maintaining law authority and predictability.Therefore,we should make a more cautious judgment based on the subjective intent which the parties signed the contract and objective situations under the existing legal system framework.First of all,"housing to debt" case mainly can be divided into four basic cases:the type of alienation guarantee,the type of paying in debt,the type of a contract of sale is essentially a loan contract,the type of contract for sale.Debt payment agreement is anonymous contract.At present its several subtypes have been formed,such as the type of datio in solutum,the type of new debt repayment,the type of changing of debt,the type of fluidity contract.Because there is no specific article in our country’s existing law to define clearly,so that there are different views on the legal nature and validity of the law when courts at all levels trial similar cases.In this case,it is imperative to establish the system of debt payments,conduct legal research systematically,refine and summarize the specific scope of each sub-type,match with the existing civil law system as far as possible,apply the law for the foothold,positive response to judicial practice.Finally courts at all levels have laws to abide by when trial similar cases.Second,The Supreme People’s Court should promulgate judicial interpretation about the system of debt payments,so as to meet the practical needs of judicial practice.Besides,Judgment and judgment opinion of Supreme People’s Court both have very high reference value based on the authority.So it can also publish the guide case so as to uniform standards and make the correct guidance to the lower courts.Meanwhile,when trial similar cases,the lower courts should identify the purpose and nature of signing the agreement and respect parties autonomy by using the relevant laws and regulations flexibly,so explore the objective reality of the case as a goal.At last,the relationship between the "housing to debt" agreement and fluidity clause should be examined by the actual impact of the agreement on the legal status of the parties after that courts can judge synthetically.Also,courts at all levels identify the validity of agreement not only avoid undue interference in the autonomy of the parties also avoid the behavior of false usury between parties through concluding "housing to debt" agreement.In addition,By improving the litigation system,strengthen the examination of the debt-bearing materials,strengthen the judge’s professional ability and professional ethics,strengthen the administration of judicial resources can prevent false litigation. |
