Research On The Problem Of Buying And Selling Guarantee

With the rapid development of social economy,the sale-based guarantee,a new type of guarantee,emerges as the times require.However,due to the lack of clear provisions in relevant laws and regulations,it has caused many disputes and disputes in judicial practice and theoretical circles.With the frequent occurrence of similar transactions and the increasingly fierce conflicts exposed,the Bulletin of the Supreme People’s Court published a typical case of sale-based guarantee,namely the Zhu Junfang case.Since then,the issue of sale-based guarantee has aroused wider concern and caused heated debate.In order to alleviate disputes,Article 24 of the Provisions of the Supreme People’s Court on Several Questions of the Law Applicable to the Trial of Civilian Loan and Loan Cases(hereinafter referred to as the "Judicial Interpretation of Civil Loan and Loan")has made relevant provisions,but the regulations are too simple to clarify the validity of the contract of sale and the specific rules for its handling.Then.Therefore,the sale guarantee still constitutes a legal loophole and lacks specific application basis.In view of the concept,legal characteristics,classification,nature,whether violation of the legal principle of property rights,effectiveness,realization methods and other issues,there is a lack of unified understanding and processing path.In order to solve disputes and unify the application of law,it is necessary to make a detailed and in-depth study of the sale-type guarantee system,so that it can be effectively and normatively applied in legal practice.In addition to the introduction and conclusion,this article mainly includes six parts:The first part aims to raise questions.Through three typical cases,the author reveals the main problems in the judicial practice of the sale-based guarantee.The controversial focus mainly includes:the definition of the concept of the sale-based guarantee,the scope of application,the nature of the confirmation,the effectiveness of the sale contract,the effectiveness of the sale-based guarantee and the way to achieve it.The second part discusses the meaning and nature of the sale guarantee.There are different opinions in academic circles about the title and meaning of the sale-type guarantee.The author summarizes the existing academic achievements,summarizes the meaning of the sale-type guarantee from a new perspective,and further clarifies the scope of application of the sale-type guarantee.In addition,in this part,the author also summarizes the legal characteristics of sale-type security and distinguishes it from similar concepts,namely,retention of title and liquidity contract.There are different opinions on the nature of buying and selling guarantee in academic circles.After analyzing different theories in academic circles,the author puts forward his own views.The third part discusses the effectiveness of sale and purchase contract.The validity of the sale contract in the sale guarantee is also a big controversy in practice and academia,mainly including the theory of invalidity of contract and the theory of validity of contract.The main reasons for advocating the invalidity of a contract lie in the fact that it belongs to conspiracy,false representation,violation of compulsory provisions of law,or violation of the principle of legality of real rights.The reasons for advocating the validity of a contract lie in the lack of motives for conspiring to make false statements between the parties,the system of prohibiting exile(pledge)by law and the opposition to the strict principle of legality of real rights.In my opinion,the sale contract in the sale guarantee is not invalid.The reason why the buyer does not immediately obtain the object of the sale contract is that it is not only the object of the contract,but also has the responsibility to realize the secured creditor’s rights smoothly.The author’s view is the validity of contract.The fourth part analyzes whether the sale guarantee is against the statutory principle of real right.Regarding whether the sale-type guarantee violates the legal principle of real right,the author advocates the position of "the principle of real right mitigation" and demonstrates the rationality of the theory of "the principle of real right mitigation" according to the actual situation,thus fully expounding the sale-type guarantee does not violate the legal principle of real right.The fifth part discusses the effectiveness of transaction guarantee.After clarifying the nature of the sale-based guarantee,its effectiveness becomes a logical question.The author first defines the scope of the sale-based guarantee,including the scope of the creditor’s rights and the scope of the subject matter of the guarantee.Then the author discusses the effectiveness of the sale-based guarantee from the perspective of creditors,debtors,guarantors and other parties.Interpretation.The sixth part studies the way to realize the transaction guarantee.In this part,the author uses the comparative analysis method to compare the two methods of liquidation and liquidity,and makes analysis and choice according to the practical situation,that is,liquidation is a more reasonable way to achieve.