Research On The Legal Issues Of "Sale Guarantee" In Private Lending

With the rapid development of modern society,the traditional way of financing guarantee can not meet the needs of the existing guarantee.At the same time,because of the imperfection of the current guarantee system in our country,the non typical guarantee mode of "sale guarantee" came into being."Sale and purchase guarantee" refers to that the creditor and the debtor sign another sale and purchase contract to guarantee the smooth performance of the loan contract,and use the right of request of the sale and purchase contract to guarantee the performance of the loan contract.There are various types of collateral in practice,but this paper mainly focuses on the debtor's real estate.In Article 24 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases(hereinafter referred to as the interpretation of private lending),the situation of secured loan contracts under sales contracts is stipulated.In the first paragraph,the type of cases in which both parties guarantee loan contracts by means of sales contracts shall be tried by private lending relations;The second paragraph stipulates that if the borrower fails to perform the effective judgment,it shall repay the debt by auction of the subject matter of the sales contract.However,there are still no specific provisions on the nature and effect of this "sale and purchase type security" and whether it can enjoy the priority of repayment.And the existing theories are too numerous to make a unified judgment.In recent years,the theories quoted by the court of first instance and the court of second instance in the judgment of the same case are not the same,the judgment results are greatly different,or similar cases have different judgment results.In the minutes of the civil and commercial trial work meeting of the national court(hereinafter referred to as the nine civil minutes)issued by the Supreme People's court in 2019,there are provisions on the issue of transfer guarantee.Although it is different from the "sale guarantee" studied in this paper,it still has important reference significance.Starting from three typical cases,this paper analyzes each case,and through the induction of problems and the evaluation of various theories,the author thinks that the nature of "sale guarantee" should adopt the theory of appointment for payment of substitute goods.The appointment of paying off on behalf of things has the nature of promise.The essence of the sales contract concluded by the two parties in the "sales guarantee" is also an appointment contract.Its establishment does not need to carry outreal house sales transactions,but when the loan contract is not fulfilled or can not be fulfilled,the two parties reach an agreement to fulfill the sales contract,which is binding since it is reached.When the debtor fails to perform the due loan contract,the creditor can require the debtor to enter into the agency agreement with him to pay off the loan;if the debtor has completed the performance,it will not enter into the agency agreement to pay off the loan.The effect of "sale guarantee" should be effective.In the case of following the relevant provisions of the law,not damaging the social public interests and in line with the party's autonomy,its effectiveness should be affirmed.As a non typical way of security,"sale guarantee" should consider both the interests of the debtor and the third party when considering the intention of establishing the security,and make suggestions from both judicial and legislative aspects.In judicial practice,it is necessary to distinguish between "sale guarantee" and other types of guarantee,which can not be simply classified into a certain type according to the form,but be examined with the right of claim as the core under finding out the true intention of the parties.At the same time,when establishing a security,the subject matter can be registered in advance so that the creditor can enjoy the priority right of similar legal security in the atypical security of "sale and purchase security".The value of the subject matter agreed upon by both parties does not correspond to the creditor's rights due to market changes.In order to maintain the fairness of both parties and prevent the occurrence of substantial fluidity,when the debtor is unable to repay the debt,the subject matter shall be adapted to the liquidation system.From the aspect of legislation,combined with the provisions of Article 24 of the interpretation of private lending and the nine people's minutes,this paper puts forward suggestions on improving the non typical guarantee mode of "sale guarantee".From the judicial and legislative aspects of the proposal and combined with the advantages and characteristics of the "sale type security" system itself,to maximize its social role.