Case Analysis Of Building Transfer Guarantee To Paying Debt By Kind Assets

From the perspective of the type of paying a debt by kind assets,the property transfer guarantee type to settle debts is one of the specific manifestations of it.From the judgment of the cases,it can be found that it is highly controversial in the judicial practice about the behavior of transferring the housing rights to guarantee the old debts before the expiration of the debt period.As to the dispute over whether the house sales contract is consensual contract or real contract,in judicial practice,the definition of practice contract is mainly for the interests of the debtor,but with the development of society,it is not appropriate to easily deny the consensual nature of the agreement for the assumption that the debtor is in weak position.According to the nature of the agreement,there are some divergences,such as the theory of paying a debt by kind assets,the theory of conditional with time limit,the theory of alienation guarantee and so on,it can be seen from cases that the main point of view of the judiciary is the theory of alienation guarantee,but both this theory and the theory of paying a debt by kind assets are one-sided.And the conditional and time limit theory exists a contradiction that whether the debtor is due to repay is not only identified as an uncertain condition but also identified as a certain time limit to come.On the basis of fully respecting the real intention of the parties,the nature of the behavior of the parties should be viewed comprehensively.As for the validity of the agreement,the main position of judicial practice is changing from invalidity to validity,in fact it does not have any false intention,and it should be careful to apply prohibiting liquid mortgage,when ruled out false situation of litigation and damage the interests of a third person,we can admit the practical value of alienation guarantee in the real right legal ease background.As a result of the above disputes caused by the legislative blank of the debt-for-property and alienation guarantee system,it is necessary to clarify the relevant system and overcome the problem of the same case and different judgment from the legislative and judicial perspectives.