Research On The Nature And Validity Of Sale-type Guarantee

The embryonic form of the guarantee system began in the ancient Greek period.During the commodity exchange process at that time,it satisfies people’s needs for guaranteeing transaction security.During the Qin and Han dynasties in ancient my country,the "mass" appeared in the society,that is,the mortgages were used to guarantee the creditor’s rights.The single guarantee system’s function of guaranteeing the realization of creditor’s rights has been broken through,and its function of financing funds has gradually become prominent.In the process of companies seeking financing,because of the steadily increasing comprehensive costs,financing difficulties are serious.At the same time,the relaxation of lending control has caused many enterprises have turned their attention to private lending with simple procedures and flexible forms.As the demand for private financing increases,the traditional guarantee methods with complicated procedures and high costs are not enough to use.Economic entities have designed sales guarantees that are more flexible and low-cost and more in line with their interests.As a new thing,a sale-type guarantee means that when the parties establish a loan relationship,the two parties agree to use the form of sale as a guarantee(in practice,a transaction agreement or an attached sale is usually made).Specifically,when the debtor can’t pay the loan,the transaction agreement shall be implemented and the house shall be delivered(in practice,the house is usually used as the subject matter).When the debtor pays off the loan,The agreement will no longer be implemented.The law has a natural lag.For such new types of guarantees,the Civil Code does not clearly stipulate,and the Interpretation does not clearly respond to controversy.In addition,the nature and effectiveness of the various arguments in the theoretical circle are not clear.When a large number of sale-type guarantee disputes are brought to the court,when one party holds a bargain connection and requests the implement of the bargain agreement,and another argues that the loan relationship is arguing that the aim of the bargain is to guarantee,because of the shortage of unified judgment rules,local courts have determined the nature and effectiveness of it produces completely different views,presenting a judicial chaos.This article conducts class analysis,inspections the existing viewpoints on the nature and effectiveness of sale-type guarantees,with a view to handling judicial decisions on sale-type guarantee disputes for judges under the current legal system.In order to respond to each party’s appeal for judicial justice.The law is always lagging behind the society.As a new thing,the guarantees should be reasonably evaluated,and civil and commercial entities should be guided to independently arrange legal and effective guarantees,which is conducive to encouraging transactions,optimizing the business environment,and promoting financing.To provide sufficient development space for new types of guarantees that will be generated in the future,so as to make legal contributions to active market financing.The main part of this paper is formed of four parts,and the specific content is as follows:The first part introduces the predicament of the judicial of the sale-type guarantee dispute.For sale-type guarantee disputes,the courts usually follow the idea of determining legal relationship → defining nature → determining effectiveness → clarifying the priority of compensation.The judgment results show that the legal relationship is whether the legal relationship is the house sale or the private lending is unclear,and the sale-type guarantee of the nature of the interpretation is different,it is difficult to form a consensus,effective or invalid is difficult to distinguish,and the priority of compensation is unclear.The reasons for this are the unclear judicial interpretation,and the complex structure of sales guarantees.The second part defines the nature of sale-type guarantees.The transfer guarantee has gradually been admitted by judicial.It takes the divert of proprietary as the establishment requirement,and has the legal effect of priority compensation after the completion of the publicity.It is obviously different from the sales guarantee that does not divert the proprietary and does not have the priority effect.Post-assignment guarantee is a unique concept created by scholars,but this concept is difficult to establish.It produces the effect of security when the agreement is established,which is inconsistent with my country’s current security rights change model;advance-type registration is used as a publicity method to divert proprietary as an explanation path of the realization method,it is not advisable after inspection.The bargain contract has conditions for cancellation,which cannot effectively explain the purpose of the parties to establish a guarantee.As far as the repayment of debts is concerned,the repayment of reimbursement has essential properties;the use of the concept of appointment to break through the reservation of reimbursement of reimbursement has interpretation barriers;if the repayment of debts is interpreted as a promise agreement,it should be a modification of the debt and the new debt is established..In fact,the sale-type guarantee uses houses as the subject matter,guarantees the refund,and has a guarantee function.Since it is not a type of guarantee specified in the text,it should be included in the guarantee category of atypical objects.The third part determines the effectiveness of sale-type guarantees.Conspiracy of hypocrisy means that the behavior that requires the parties to behave externally is not the same as the legal effect that they want to occur in their hearts,that is,the intention is separated between the external expression and the inner intention of the two parties,resulting in hypocritical and hidden behavior;for sale-type guarantees,In other words,the real intention of the parties is to set guarantees,and the external behavior is a guarantee agreement made by both parties with the intention of guarantee.Therefore,it does not a false representation of conspiracy.The rigid law of rights restricts the development of new guarantee.After a certain form of publicity,the sale-type guarantees can guarantee the safety of transactions and conform to the purpose of the law of real rights.By relaxing the legal boundaries of real rights,it can be admitted and can be used.The role of guarantee is conducive to encouraging transactions and improving financing efficiency;in addition,according to the principle of distinction,sale-type guarantees have not been effectively publicized and have no effect of real rights,but they do not affect the effectiveness of the agreement and are still binding on both sides.The original intention of the liquidity agreement prohibition was the prohibition of huge profits.From the perspective of protecting debtors,sale-type guarantees should be adjusted by it.However,adherence to the liquidity prohibition denies the effectiveness of sale-type guarantees and will defeat the creditor’s protection of claims;establish liquidation procedures,that is,It can overcome the disadvantages of the liquidity prohibition,recognize the effectiveness of the sale-type guarantee and at the same time classify the obligation of liquidation,and consider the principles of free will and fairness.The fourth part is to ameliorate the rules for the judgment of sale-type guarantee disputes.Accurately determining the legal relationship is the basis for the trial of the sale-type guarantee dispute.When reviewing the sale agreement based on the evidence in the case,the judge should investigate the substance of the agreement and the actual performance,and comprehensively judge whether it is a normal sale bargain.Treating lending and selling as a whole,exploring the real purposes of the parties.Due to the lack of effective publicity,the lender cannot receive priority compensation for the secured property under the contract.Specifically,pre-sale registration,as an administrative measure,does not have the effect of publicity of changes in property rights;pre-announcement registration can restrict debtors.However,there are theoretical obstacles to using it as an effective publicity method to give priority to the sale-type security real right.