Study On The Legal Nature Of The Buy-and-Sell Guarantee

The buy-and-sell guarantee are new types of guarantees that are generated from practice,in academic circles there are many kinds of titles for them,such as “buyand-sell guarantee”,“guarantee-type sales contracts”,“named sales and purchases,real loans”,and “household debts”,the “buy-and-sell guarantee” can better reflect the characteristics of this new type of guarantee,so it is called below.The buy-and-sell guarantee is a guarantee for private lending by signing a house sale contract.As a new type of guarantee method with low cost and high efficiency,it is widely used by market entities that are in urgent need of financing.The legal relationship of the buy-and-sell guarantee is complex and special.Before the introduction of Article 24 of the "Understanding and Application of Judicial Interpretation of Private Lending in the Supreme People's Court"(hereinafter referred to as "the Judicial Interpretation of Private Lending"),in the "Zhu Junfang case",the Supreme People's Court determined that the buy-and-sell guarantee contract was established and came into effect,while in the "Yang Weipeng case",it was determined that the buy-and-sell guarantee was an atypical guarantee,and the violation of the liquidity prohibition clause was invalid.After the promulgation of Article 24 of the Judicial Interpretation of Private Lending,the legality of this legal relationship of the buy-and-sell guarantee was affirmed.However,the legal provisions only harmonize the rules of the referee for handling the buy-and-sell guarantee cases,and adopt an evasive attitude towards the nature and effectiveness of the buy-and-sell guarantees.As a result,there is no unified doctrine that leads to the legal issues related to the buy-and-sell guarantees in the academic circles and judicial practice.Analysis of the typical cases related to the buy-and-sell guarantee can be seen that the legal nature of the buy-and-sell guarantee and the effectiveness of the purchase and sale guarantee contract due to the unclear legal provisions of the buy-and-sell guarantee are quite controversial in the judicial practice.The nature of the buy-and-sell guarantee includes the theory of property rights,the theory of credit guarantees,and many other theories.According to the theory of security in rem,the legal structure of security for sale is similar to that of security for transfer.The only difference lies in the time of transfer and delivery of the subject matter of contract for sale.Therefore,it can also be called security for subsequent transfer.If the extension of the mortgage is expanded,the buy-and-sell guarantee can even be directly covered by the legal structure of the real estate mortgage.The credit guarantee said that the buy-and-sell guarantee is to guarantee the loan by signing a buy-and-sell guarantee contract,that is,a house sale contract.And this type of sale and purchase guarantee contract belongs to the agent settlement contract or a substitute settlement contract.Through the methods of empirical analysis and comparative study,summarizing different theoretical viewpoints,we can see that the surrender reservation is more in line with China's judicial practice.In the negotiation of the buy-and-sell guarantee contract,the true meaning of the two parties does not lead to the performance of the house sale contract,but it expresses the agreement to carry out the settlement of the property when the debt is not fulfilled.This kind of agreement is obviously an appointment.The buy-and-sell guarantee is an appointment for the settlement of the substitute,the true meaning of the two parties is the satisfaction of the settlement of the substitute.It is not a liquidity clause signed to circumvent the mandatory provisions of the law,therefore,the buy-and-sell guarantee contract is not invalid.The signing of the buy-and-sell guarantee contract means that both the borrower and the lender have consulted and reached an agreement on the liquidation of the substitute.Unless the legal termination of the contract occurs,the borrower must enter into a substitute with the lender to settle the principal,the lender has obtained the right to make a claim for the settlement of the contract due to the signing of the reservation for the settlement of the goods.If the borrower does not agree to enter into a settlement with the lender,the lender may pursue the borrower's liability for breach of contract,and the borrower cannot defend against the failure to compromise.When signing a buyand-sell guarantee contract,most creditors will choose to register the contract.This registration is only an administrative system to regulate real estate transactions.It has no publicity effect and can not create a security real right.When applying the provisions of Article 24 of the Judicial Interpretation of Private Lending,the court shall ascertain the specific content of the contract for the sale of the house.If the borrower requests the return of the house in violation of the validity of the mortgage clause in the contract of sale after he has delivered the house to pay off the debts and registered the changes,the court shall not support it.