Research On Legal Problems Of Post-transfer Guarantee

In the context of the rapid economic development of China,SMEs aregra dually becoming active in the market.These enterprises have increased their financing needs year by year with the expansion of production and operation.However,the formal financial system represented by banks has stricter loan polic ies for such enterprises.Therefore,the private financing market is gradually expanding,and the prosperity of private lending has spawned the emergence of illegal guarantees.The atypical guarantees,such as post-transfer guarantees,are generated in this environment.Post-transfer guarantees are secured by signing a sales contract as a loan agreement.There are different views on this form in the academic world.Some scholars believe that the concept of post-transfer gu arantee has been covered by the transfer of guarantee,and some believe that the post-transfer guarantee should be Some of the new types of atypical guarant ees are considered to be quite similar to post-transfer guarantees,liquidity clau ses,and conditional surrogates.In judicial practice,courts in different regions have made different judgments on similar cases.Some courts denied the validity of the sales contract in accordance with the liquidity clause,and some courts recognized the validity of the guarantee of the sales contract and paid off the debt by auction.The Supreme People's Court in Article 24 of the "Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases" believes that the core of this legal relationship is private lend ing,and this form of guarantee should be handled in accordance with private 1 ending in the judiciary.The ninth "Minutes of the National Court of Civil and Commercial Trial Work Conference" recognized the role of guarantees for illeg ally established guarantees.It proposed in the section on guarantee disputes that new types of guarantees should not be easily denied,and the contractual effe ctiveness of atypical guarantees And the guarantee function should be recognize d.At the same time,this article collects and sorts out the judicial judgments on guarantees of concessions in different periods,and summarizes the common problems and judgment ideas of such illegal guarantees.This article mainly adopts the literature research method and case study method to conduct theoretica 1 comparative analysis and case study to discuss the deep-seated issues of conc ession guaranteeThis article is divided into four parts.The first part is an overview of the theory of concession guarantee,which mainly defines the concept of concession guarantee.In recent years,SMEs have developed rapidly,but due to the high threshold of bank loans,the procedures are cumbersome,Difficulties in corp orate financing.For the purpose of corporate financing,new trading habits are gradually formed driven by the pursuit of safety,efficiency and low cost by SMEs.They adopt a special guarantee method of real estate sales contracts as guarantees for loan contracts to solve the funding problem.In March 2013,Prof essor Yang Lixin's "Concession and Guarantee:A Forming Customary Law Sec urity Right" explored this new type of trading habit and defined the transaction type as "post-concession" through theoretical exposition "And guarantee",caus eda heated discussion in the theoretical community.Some scholars believe that post-transfer guarantees have independent value and significance,and are an atypical guarantee.Some scholars question the concept of post-transfer guarantee s,arguing that there are theoretical flaws and it is not possible to build an ind ependent system.The first part will discuss and analyze different perspectives of the academic world,and compare and analyze the concession guarantee and the concession guarantee,liquidity clause,conditional release,optional debt,and conditional surrogate settlement at the legal concept level.Make a clear legal positioning with guarantees,that is,generated in the market environment of China,similar to the atypical guarantees that give guarantees.The second part is the reason for the concession guarantee.It first analyzes the choice of SMEs that have to invest in private lending from the perspective of bank financing difficulties,and secondly analyzes the unfavorable SMEs from the perspective of legal guarantee restrictions,costs,and time.The reason,again using P2P as an example to compare the financing cost of private finance and private lending,found that the financing cost of private lending is low,and finally based on th e above three points combined with China's lending environment and credit constraints analysis based on private lending,the concession guarantee can meet The above-mentioned pain points of SMEs are being used by more and more enterprises.The third part is the judicial practice judgment of the concession guarantee.It analyzes and summarizes the problems and common treatment meth ods of the concession guarantee in the judicial practice.Before and after the enactment of the Articles,courts at all levels faced the confusion of judgments arising from the legal problem of post-transfer guarantees.The second analysis summarized that in the judgment process,there is still a one-size-fits-all approa ch to the validity of sales contracts,the effectiveness of guarantees,priority rig hts of compensation and the nature of cases There are some shortcomings.Fin ally,the court analyzes and summarizes the common treatment methods of the court on the scope of the guarantee subject,the determination of the guarantee intention,and the realization of the guarantee function.In the fourth part,the author puts forward my own suggestions based on the problems in the backgro und of the second part and the common disputes in the third part of judicial practice.I envisage the construction of a perfect concession guarantee system.The content makes provisions,clarifies the scope of guarantee effectiveness of the concession guarantee,formulates the liquidation method of the concession guarantee,improves the elimination of the concession guarantee,and builds a special publicity platform for the concession guarantee.The platform provides information about guarantees for both borrowers and lenders.In summary,this article analyzes the causes of the concession guarantee and the disputes in judicial practice,and draws on the construction of the conce ssion guarantee system based on the assumption of the existing legal guarantee system,but it involves a large scope,so it is only from the perspective of feasibility To carry out the construction,whether the details are reasonable remains to be further studied.