Research On The Post-transfer Guarantee

With the continuous development of the social economy,market transactions are becoming more and more liberalized.At this time,parties of private lending are inclined to choose a convenient and low-cost way to trad,so the "post-transfer guarantees" came into being.This kind of guarantee is the result of the parties’ autonomy,so it isn’t stipulated in the relevant laws.Therefore,there are continuous academic disputes over the legal validity of this type of guarantee,and disputes over referees emerge one after another.And with the promulgation and implementation of the "Civil Code of the People’s Republic of China"(hereinafter referred to as the "Civil Code"),practical and theoretical circles have gradually unified their opinions on post-transfer guarantees.This article starts from "the case of Zeng Fuyuan and Hunan Xinguo Real Estate Development Co.,Ltd.Contract Dispute"(hereinafter referred to as the "Case of Zeng Fuyuan").Analyze and summarize the case combined with relevant theories,and discusses the difficult problems that appear in the development process of "post-transfer guarantees".Standardize it as much as possible in the context of "balance of interests".The article will discuss in detail from the following four aspects.The first part is an introduction of the "case of Zeng Fuyuan".This section refines the focus of the dispute in the trial: Whether the actions of the parties constitute the post-transfer guarantee? Is the real estate purchase and sale contract valid? Should creditors’ right be protected? Use these questions as the subject of each chapter,which will be discussed further in the following article.And this article will systematically analyze the case with some theories.The second part is to define and analysis the core of the case-"post-transfer guarantee".This part focuses on the theories of domestic scholars on the issue and lists them.The third part mainly discusses the legal effect of "post-transfer guarantee".This article focuses on the three aspects of "flexible exiled clause","perfect numerus clausus" and "principles of distinction" after the promulgation of the "Civil Code".Comparing the relevant provisions of the Property Law,we can study its effectiveness in a new context.The fourth part of the article mainly discusses the protection of creditors by "post-transfer guarantee".Firstly,the distinction between "post-transfer guarantee" and "debt with property" is distinguished by whether the creditor has the right to perform the option.After that,it focuses on the priority of the creditors in the "post-transfer guarantee".In response to this issue,this article focuses on the "flexible exile clauses" in the Civil Code and the provisions of "Judicial Interpretation No.28 of 2021",the creditor can receive the price of the collateral after the liquidation.And this method is conducive to protecting the rights of creditors.It also embodies the core value of the "balance of interests" of the post-transfer guarantee.