The Nature And Effect Of "Sale Guarantee" Contract

In the current judicial practice,there is a kind of "guarantee" mode,that is,the creditor and the debtor sign a sales contract at the same time of signing the loan contract,which stipulates that when the debtor is unable to perform the obligation of repayment when it is due,it is necessary to perform the sales contract to eliminate the creditor debt relationship between the parties.For the convenience of discussion,this paper defines it as "sales guarantee" Bao.With the continuous development of China's economy,this practice is particularly common.In judicial practice,more of them are real estate sales contracts.Obviously,the reason why the parties in this legal relationship sign the sales contract is to "guarantee" the loan contract.However,throughout the current legal system of our country,neither the property law nor the security law can provide sufficient legal basis for this kind of "security".Therefore,in judicial practice,courts around the country have different opinions on this issue.In order to unify the judicial basis in the judicial practice,the Supreme Court made an explanation in the form of separate legal provisions in the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases,which was officially implemented on September 1,2015,in order to solve the different judgments in practice.The first paragraph of the article stipulates that such cases should be tried in accordance with the legal relationship of private lending,which seems to recognize the sales contract as invalid.However,in the second paragraph,it is stipulated that the creditor may auction the subject matter involved in the contract of sale to repay the debt,which seems to recognize the validity of the contract of sale.In addition,the creditor has no priority to be paid for the price after the auction,which is also inconsistent with the traditional definition of security interest in China.Therefore,there are still many ambiguities in the text of this article,and there is no positive response to its nature and effect,which cannot solve the problems encountered in judicial practice in essence.In academic circles,there are also many disputes.Such as the earlier security theory,which can be subdivided into the theory of assignment security,the theory of post assignment security and the theory of mortgage.Although this theory is similar to the "sale guarantee",it is different in essence.For example,the subject matter of the assignment guarantee is transferred when it is provided,and then the assignment guarantee lacks sufficient theoretical support;for example,the creditor in the "sale guarantee" has no priority to be paid.In addition,some scholars understand this kind of "guarantee" from the field of debt law,among which the theory of substitute payment,the theory of debt modification and the theory of new debt payment are the mainstream.However,this understanding can not completely cover the legal relationship between the parties in the "sale guarantee".However,the author believes that it is more effective to find the answer in the field of debt law than to demonstrate this kind of "guarantee" in the field of property law,and then to identify it as a new debt repayment with stop conditions by demonstration.It not only considers the purpose of "guarantee" and the provisions of the existing legal system,but also interprets such "guarantee" with full respect for the party's autonomy.In addition to the introduction and conclusion,this paper is mainly divided into four parts:In the first part of the article,based on the background of the emergence of "sale guarantee",through the retrieval of the judgment databases such as the magic weapon of Peking University and the judgment document network,and combining with the author's own point of view,the typical cases are selected for discussion,and compared with other judgment conclusions,on the basis of distinguishing effective or invalid,the author tries to analyze the disputes and benefits of different judgment results in the judicial judgment Disadvantages.In the second part,we divide the "sale guarantee" into the field of property law and the field of debt law,and analyze the main theories,and further discuss the nature of this kind of "guarantee" contract in the analysis of the advantages and disadvantages of their respective theories.We try to give a more comprehensive and reasonable overview of this kind of "guarantee" contract in the framework of the existing theories,and draw out our own views Point.In the third part,after the second part of this paper summarizes various theories and viewpoints,I come to my own point of view that "sale guarantee" should belong to the new debt repayment with stop conditions.In terms of nature,it can be divided into why it is regarded as "conditional" and "new debt repayment".In terms of effectiveness,it can be analyzed in detail in terms of whether the intention between the parties is true,whether it violates the provisions of prohibition of fluidity and whether it should have guarantee effect.In the last part,according to Article 24 of the regulations of the Supreme People's Court on the application of law in the trial of private lending cases,on the basis of its interpretation,this paper analyzes the defects of its existing provisions,and puts forward some simple suggestions for its improvement and development.In conclusion,the author argues that this kind of "guarantee" is a new debt repayment with stop conditions.It not only considers the purpose of "guarantee" and the provisions of the existing legal system,but also interprets such "guarantee" with full respect for the party's autonomy.First of all,the reason why the new debt is paid off is that under this "guarantee" form,the sales contract and the loan contract should be parallel.Although the purpose of the sales contract is to provide "guarantee" for the performance of the loan contract,the old debt of the loan contract does not necessarily disappear before the completion of the performance of the new debt of the sales contract.When the debtor is unable to perform the debt of the sales contract,the basic legal relationship is reserved for the creditor to request the performance of the loan contract,and it is suitable for the lender's performance option proposed by the author.Secondly,it can postpone the effective time of the sales contract until the debtor is unable to perform the loan contract.Although there are two contracts established at the beginning of the loan,the creditor can only exercise its rights according to the effective loan contract,and the debtor has only the obligation to repay the principal and interest of the loan.In this way,it is also in line with the provisions between the parties and reflects the purpose of the "guarantee" of the sales contract.