| From the beginning of the new century until now,with the economic development and the impact of national financial control policies,the private lending market is increasingly prosperous.Among them,the emergence of such a new approach of individual financing:the parties have been effectively established in addition to the loan contract,signed the contract of the sale of housing in the form of a loan contract for the guarantee,and negotiated,if not due to repayment,Sale contract to house the debt.The author for the convenience of discussion,such as security for the purpose of signing the sale and buying of the contract known as the "secured housing sales contract."How to determine the effectiveness of such contracts is a problem that plagues judicial practice as well as the result of "Same cases,different judgements’ phenomenon.phenomenon.The supreme People’s Court published the Law on Several Issues Concerning the Application of Law in Civil Loan Cases in the year of 2015.1t said that the court should focus of the loan law relations due to the secured housing sales contract.The loaner could apply for selling the targeted house for the loaned money.And the debtor could ask for the money left.However,this provision failed to give a certain answer to the nature of this type of contract and it also failed to answer whether the loaner could get repaid in priority.Therefore,basing on these left questions,the author thinks it’s quite necessary to explore the nature and the effectiveness of this type of contract.The author intends to comment on five representative theories,basing on the guiding cases and the analysis of current laws.Then the author explores the basic law relations and defines this type of contract as secured housing sales contract.In the perspective of secured housing sales contract,the principle of numerus clausus,the author analyzes the relations between the secured party,the people who sets the warrant and the third party.Finally,the author sets the new judgement routes to ensure the authority of the judgements and the justice of our society.This article is basing on the positivism and cases analysis.By searching the relevant cases online and summarizing the conflicts and the judgements logic,the author intends to put forward solutions.In order to make the demonstration vivid and the conclusion more practical,the author selects some cases.Concerning the aspects that haven’t been defined in current laws like transferring guarantee and fake intentions,the author refers to the law-making experience of German and Japan to justify his conclusion in the perspective of Law Transferring.The author intends to make devotion to perfecting Chinese law system. |
