| With the development of financial economy,a new type of guarantee has appeared in judicial practice in recent years,that is,the parties provide guarantee for the loan contract by signing the sales contract,and agree that when the debt is not performed at maturity,the creditor has the right to transfer the ownership of the subject matter of the sales contract according to the request of the sales contract.This new type of guarantee,which is called sale-in-fact guarantee,is later defined by scholars as post-transfer guarantee.Once this theory was put forward,it was quite controversial in the theoretical circle,and there were different judgments on this form of guarantee in judicial practice.The issuance of Article 24 of the Judicial Interpretation on Private Lending in 2015 mentioned the handling of such cases.Article 71 of the Minutes of the Nine People’s Meeting passed in 2019 clearly defined this new form of guarantee as the post-transfer guarantee,which has guiding significance for the settlement of disputes in such cases in the future.After as a new type of atypical guarantee real rights for security and guarantee the right to transfer time,power status,guarantees the effect has difference,shall confirmed the existence of guarantee independent value,in the form of laws and regulations after further standardize behavior,guarantee the play their role in the economic development of our country.In addition to the introduction and conclusion,the thesis is divided into three parts.The first part,through the introduction and analysis of the three cases,summarizes the controversial focus of the cases,and puts forward some related issues of the collateral,such as the identification of the nature of the collateral,the validity of the contract,etc.The second part discusses the definition and nature of collateral,the differences between collateral and other forms of collateral,and the contract effectiveness of collateral on the basis of the theory of collateral.Through legal analysis,it is concluded that the transferee of real estate should enjoy the priority of compensation in the case of advance notice registration.The third part introduces the experience of the similar system of post-transfer guarantee in foreign countries,including the false registration guarantee system in Japan and the guarantee land debt system in Germany.Through the comparison of the two different systems,the conclusion that the false registration guarantee system is more useful.In addition,it puts forward some suggestions on the way and path of the realization of post-transfer guarantee: Including shall clearly effective guarantee conditions for establishing a written contract,the guarantee system of draw lessons from the false registration in Japan the practice of creating is more convenient than the advance notice registration after registration measures as a guarantee of the public way,improve the guarantee,the subject matter of the use and custody regulations explicitly guaranteed the rights and obligations of the parties in the process,By means of auctioning,selling off and discount,we can realize the creditor’s rights guaranteed by the post transfer,and further improve the liquidation process of the post transfer guarantee in China,so as to provide help for the improvement of the system of the post transfer guarantee in China. |
