The Validity Of Guarantee Contract Of Sale And The Criterion Of Adjudication

In real life,the objective environment is numerous and complex,the demand of the transaction main body is very different,so in the transaction,the civil subject will create a variety of complex trading models to realize the benefit maximization and evade the risk,and the stipulations of the parties ’ rights and obligations are much more changeable and the content is mixed than the contract forms stipulated by And these transactions once the dispute enters the lawsuit stage,because its content mix,the form innovation often causes the litigant to enter into the contract to carry on the transaction the real intention to be concealed,these characteristics make it becomes the difficult case in the trial practice,causes the handling judge to be troublesome.For example,in practice,in cases where the loan relationship is secured by the contract of sale,the different courts make many different and even diametrically opposed judgments,which leads to the controversy over the nature,validity and referee norms of the contract of guarantee sale.As to the nature of the guarantee contract,the guarantee law and the property law of China have not made clear stipulations,so the theory circle has the so-called guarantee,real estate mortgage,and the reservation of ownership.This article through to "the Supreme People’s Court bulletin" published the Case judgment document and the related case Judgment document analysis,firstly,the paper defines the nature of the "Guaranteed sale contract",and clarifies the boundary between the new type of atypical guarantee and the legal guarantee property right(i.e.typical guarantee),the guarantee and the guarantee,and the other concepts.Secondly,based on the trial practice of the case of "the real house sale as loan guarantee",the author analyzes the reason and the result of the case,and puts forward his own judgment idea,that is,to advocate the guarantee nature of the contract and give its real right effect.Again,on the basis of the previous text,the validity of the "Guaranteed sale contract" is analyzed,and the paper holds that the liquid prohibition and the legal principle of real right cannot negate the guarantee effect of the "Guaranteed sale contract" : On the one hand,the scope of application of the liquid prohibition rule should be reasonably restricted;And the legislation purport of the legal principle of the real right is interlinked.In the end,the author analyzes the rules of the guarantee-type sale contract,this paper puts forwardthe judgment countermeasure of "predictable" and strong operability from the aspects of whether the contract purpose of "guarantee sale contract" is to judge,remove the liquid content in the "Guarantee sale contract" and clean up the creditor’s rights and debts between the parties.