Research On Nature And Validity Of “guarantee-type Sale Contract”

With the development of the diversification process of market economy,a new type of guarantee comes into being,scholars call this new type of atypical guarantee contract as guarantee-type sale contract.In October 2015,the judicial interpretation of private lending made relevant provisions on guarantee-type sale contract,but it avoids the question of its nature and effectiveness.Based on this background,this paper cites two typical cases of guarantee-type sale contract,Junfang Zhu case and Weipeng Yang case,these two different from the results of the case,lead to the contract disputes,for the current academic circles and practical circles that guarantee mode of dispute mainly displays on the nature and effectiveness of the guaranty-type sales contract.This paper interprets article 24 of the judicial interpretation of folk lending and analyzes its progress and shortcomings.The impetus of this clause lies in the recognition of the form of guarantee-type sale contract,determined that the guarantee-type sale contract belongs to the folk loan relationship and affirmed the application of the principle of prohibition of liquid substance.The deficiency of this article is that the legislation of article 24 is ambiguous,which avoids the focus of judicial practice.This paper then lists the theory and practice of the nature of guarantee-type sale contract,the doctrine concerning the nature of guarantee-type sale contract includes the theory of assignment guarantee,the theory of post assignment guarantee,the theory of datio in solutum appointment and the theory of immovable property mortgage.This paper holds that the secured sales contract is more in line with the theory of post-assignment guarantee,and then analyzes the connection between the guarantee-type sale contract and the assignment guarantee,the manifestation of the post-assignment guarantee and the setting mode of the post-assignment guarantee.At the same time,this paper introduces some academic viewpoints on the validity dispute of guarantee-type sale contract,including the theory of invalidity and the theory of validity.This paper holds that the guaranteed-type sales contract shouldbe a valid contract,that there is no false expression of intention in the guaranteed-type sales contract,that the guaranteed-type sales contract does not violate the prohibition of liquid terms,and that the guaranteed-type sales contract does not violate the principle of statutory property rights,and that the guaranteed-type sales contract is legal and effective.