Study On The Effect Of Financing Guaranteed Sales Contract

Financing guaranteed sales contract is the embodiment of folk wisdom in the field of guarantee.That is an atypical form of security.Financial subjects guarantee loans creatively with sales contracts.This kind of design is characterized by illegality,flexibility of procedure and dispute of legal relationship.Its causes and operation mechanism are also complex.And there is no perfect law in our country to regulate this new type of guarantee,resulting in many academic and practical disputes around this kind of guarantee.Academic disputes mainly focus on whether the financing secured sales contract is a real right guarantee or a creditor's right guarantee.Specifically speaking,the theory of real right guarantee includes transfer guarantee,post transfer guarantee,real estate mortgage,ownership retention and so on.The theory of in the domain of law of obligation includes paying off on behalf of the property,making an appointment for paying off on behalf of the property,conditional trading,setting off an appointment,etc.From the perspective of the nature and the final effect of the financing secured sales contract is a real right change based on guarantee function.The design of the sales contract is not only about the creditor's rights,but also the object of the sales contract,which has the function of guarantee,so it belongs to the real right guarantee.The dispute of judicial practice focuses on the validity of this new type of guarantee.The effective treatment is mainly based on the idea of autonomy of private law,while the invalid treatment aims to maintain the legal principle of real right in public law.The contradiction of application of financing guaranteed sales contract is between maintaining the legal principle of property right and meeting the financing demand of financial market.Therefore,the determination of the effectiveness of the financing guarantee type sales contract is the choice between this two values.Summary of the ninth civil and commercial trial of the national court has recognized the guarantee effect of financing guarantee type sales contract.In order to balance the legal value of real right and the value of financing efficiency,the compulsory liquidation obligation should be taken as the necessary condition to realize the guarantee procedure.As for the publicity procedure,there is no unified publicity procedure for financing secured sales contract in China.According to its nature and characteristics,it is most appropriate for our legislation to adopt registration antagonism to establish the publicity system of financing secured sales contract in the future.