The Nature And Validity About Contract Of Sale In Trading Guarantee

With the development of economy,formal financial institutions have been unable to meet the financing needs of the market.At the same time,for the purpose of reducing transaction costs,fast and efficient,the two sides of the loan through the signing of commercial housing sales contract to guarantee the performance of the debt,this atypical way of guarantee came into being.Due to the complexity of this type of contract legal relationship,and the lack of clear provisions on the nature and effectiveness of this new type of guarantee in Chinese law,the confusion of different judgments in the same case in judicial practice has also attracted great concern in the academic circles.This paper aims to explore the nature and effectiveness of the guaranteed commercial housing sales contract.Through the integrated analysis of the relevant cases,this paper reviews the judicial judgment from the macro perspective and case analysis,and summarizes the current situation of the trial and the change of this kind of contract’s judgment path.Based on the analysis and criticism of various theories,this paper makes clear the nature and effectiveness of the guaranteed commercial housing sales,and puts forward suggestions on the implementation and judicial trial of the guaranteed commercial housing sales contract from the aspects of standardizing the contract content,clarifying the way of publicity,improving the liquidation rules,and stipulating the priority of compensation,so as to ensure that it can play a better role in serving the economic development.This paper consists of five parts:The first part is the definition of guaranteed commercial housing sales contract.This part analyzes the background,concept and characteristics of the guaranteed commercial housing sales contract,and summarizes the legislative status of the guaranteed commercial housing sales contract.The second part is the judicial review of the guaranteed commercial housing sales contract.From the macro analysis of case data and the type analysis of typical cases,this part explores the current situation of judicial trial and the change of adjudication path of guaranteed commercial housing sales contract.The third part is to explore the nature of guaranteed commercial housing sales contract.By analyzing and questioning the most controversial theories(conditional sale contract theory,debt renewal theory,alienation guarantee theory,after-alienation guarantee theory),then concludes that after-alienation guarantee theory is most in line with the essence of guaranteed commercial housing sales contract.The fourth part is the confirmation of the effectiveness of guaranteed commercial housing sales contract.This part negates the view that the commercial house sale contract is ineffective due to infringement of legal property rights and collusion with false expression.,liquidity contract and other reasons,and confirms the effectiveness of the guaranteed commercial housing sales contract.The fifth part is the perfection of guaranteed commercial housing sales contract.From the aspects of standardizing the content of the contract,clarifying the way of publicity,improving the liquidation rules,and stipulating the priority of compensation,this paper standardizes the implementation of the commercial housing sales contract,and puts forward the trial suggestions to improve it.