Types And Law Application Of “guarantee Called For The Trading”

Judging from the current judicial practice,the main types of cross-mixing of the contract of sale and borrowing are as follows: the conclusion of the sale and purchase contract as a guarantee for private lending.This type of guarantee is defined as a trade-off guarantee because it has the function of ensuring the purpose of its guarantee in the form of a contract of sale.Such a sale of the guaranteepresents a different nature because the parties' meaning has different contents,and thus fulfill the consequences also show some differences.This paper mainly discusses the nature and effectiveness of the sale and purchase guarantee and the liquidation obligation in the implementation of the sale and purchase guarantee,and draws the following conclusions:This paper consists of three parts: introduction,text and conclusion,the main text consists of four parts:Part I: Overview of Sale and Purchase.This part mainly analyzes the background of the rise of the sale and purchaseguarantee,the main cases in the judicial practice and the legislative situation of the sale and purchase guarantee.The four types of representative cases canshow the parties in the sale of the type of guarantee when the true meaning of that.At the same time,the article analyzes the main problems and theoretical disputes in its application,and introduces the legal analysis of the sale and purchase guarantee.Part II: the nature of the sale and purchase guarantee.At present,there are many differences between the doctrines of the four kinds of nature and the existence of the security structure of the sale and purchase.There is a direct choice in the judicial practice of the sale and purchase guarantee.Through the analysis of the nature of the sale and purchase in the specific case,this article summarizes the nature of the sale and purchase guarantee about whether the parties have the true meaning of the sale and purchase contract,the first is the sale contract with the stop condition,Offsetting the reservation;the second is after the guarantee and promise-Connaught guarantee agreement.But referred to in this article,after the guarantee and non-Professor Yang Lixin referred to the customary law to protect the real right,but only a promise of a promise,only the right to claim claims.Part III: Analysis of the Effectiveness of Sale and Purchase.Regardless of the conditions of the sale of the contract to stop the sale of the contract + offsetting or after the type of guarantee,but did not create a security interest and does not apply to the prohibition of the provisions of the provisions of the ban on the provisions of the main provisions of the provisions of the provisions of the principle of maintenance of property rights The Based on the purpose of protecting the debtor and prohibiting the profits of the debtor,the debtor is able to apply for the cancellation of the sale and purchase contract if the sale and purchase contract satisfies the unfair objective and objective elements in the case of the suspension of the sale and purchase contract.And for the latter after the guarantee,because of the nature of its single contract and its secured claims to achieve the function of positioning,deficit system can not be directly applied or analogy applicable.Therefore,for the purpose of the guarantee,this article special inspection of the German law in the public good and the law on the excessive security and debtor behavior of the specific case,that China's principles of public order should also include such cases,such as the integration of the elements of analysis,When the guarantee guarantees the excessive guarantee and constitutes a binding act on the debtor,it shall be determined by virtue of the German law and shall be invalidated by the violation of the principle of good law and order.But after the promised to make invalid confirmation,should be taken into account the various factors,prudent grasp.Part IV: Liquidation obligations in the sale of collateral.The implementation of a sale and purchase guarantee shall be carried out by way of the transfer of the ownership of the subject matter by the debtor to the creditor,and the parties shall bear the corresponding liquidation obligations.The liquidation obligation can be expressed by the supplementary explanation of the meaning of the parties in the absence of any agreement with the parties.The results of the implementation of different types of construction,should be subject to private lending on the "two lines and three districts," the statutory interest limit.In addition,for the value of the house + offset the total amount of residual debt or the value of the house more than the borrowing principal,interest during the period,can be regarded as the parties agreed to delay the liquidated damages(including the parties agreed overdue interest).The delay in liquidated damages should also be subject to the civil loan interest regulation,after the "two-tier three areas" to adjust the delay after the liquidated damages,the debtor still have to apply to the court to start the liquidation of judicial review.In summary,according to the legal analysis of the sale of the security of this article,the law [21] No.18,Article 24,paragraph 2 to confirm the creditors to request the auction of the subject matter of the sale of the right to indemnity is unreasonable,The true meaning of the parties expressed,and in fact made the creditor as a similar priority to the mortgagee status.