Legal Research And Legal Regulation Recommendations On Trading Style Guarantee Of Estate

At present,there are a lot of cases in the financing practice of real estate companies.Real estate companies and creditors sign a private loan contract at the same time or before the expiration of the loan period,and agree that if the real estate company can not repay its debts,the creditor will lend to the real estate company as the purchase of the secured house.As a result,such disputes frequently arise: the real estate company is unable to repay the debt at the expiration of the debt period,and the creditor requests the court to confirm that it has a real right to the house and to require the real estate company to perform the transfer formalities.There are differences in the theoretical circles on the understanding of the trading style guarantee of estate.On the nature of this kind of contract,there are mortgage theory,let and guarantee theory,post-command and guarantee theory,atypical guarantee theory and the appointment theory,etc.In trial practice,different courts and judges have different decisions on such disputes,lack of uniform standards,and extend to the field of enforcement.Correct handling of such cases is not only related to the maintenance of the vital interests of the parties,but also to the unity of the people’s court.At the same time,the correct handling of such cases is of great significance for preventing false litigation,perfecting guarantee norms and promoting the healthy development of economy.In this paper,the author focuses on the legal nature of the trading style guarantee of estate from the typical cases of the Supreme people’s Court.Its essence belongs to the secured creditor’s right,and the creditor’s right based on the trading style guarantee of estate belongs to the claim right.With regard to the legal effect of trading style guarantee of estate,it is proposed that "based on the civil law principle of respecting the autonomy of the parties and combining with the provisions of banning the flow of custody.The trading style guarantee of estate is partially valid,and the creditor can guarantee the creditor’s rights by auctioning or selling the house,and can pay the secured house on the basis of this guarantee,but can not directly obtain the ownership of the house or require the debtor to perform the formalities of transfer of ownership." This point of view further extends to the increasingly concentrated practice of enforcement adjudication,and discusses the treatment of dissent cases filed by creditors under trading style guarantee of estate..Explain the position that "the creditor’s objection to enforcement cases under the trading style guarantee of estate.can not be established,but can apply for participation in the housing execution process.Finally,the author puts forward some suggestions of the trading style guarantee of estate,in order to explore a reasonable judgment path for the judges trapped in such practical puzzles,so as to unify the judgment scale and enhance the judicial credibility.This article uses the literature research method,the case analysis method and the investigation method,carries on the elaboration in four parts: the first part is the introduction,mainly elaborates the research background,the research present situation and the research method,emphatically states about trading style guarantee of estate.contract legal nature mortgage theory,the concession and the guarantee theory,the post-transfer and the guarantee theory and the substitute payment appointment theory four views,and analyzes trading style guarantee of estate legal effect valid theory and the invalid theory,then expounds the creditor raises the case outsider objection by the trading style guarantee of estate.four treatment views.The second part from the case of the Supreme People’s Court,looks at the judgment evolution,the legislation status and the trial predicament of the case of the trading style guarantee of estate,briefly describes the typical case of the Supreme People’s Court,the legislation status of the trading style guarantee of estate,and the conflict between the current law application and the real intention of the parties,the needs of the private financing environment and the development trend of the market economy.The third part discriminates the legal nature and the legal effect of the trading style guarantee of estate.,mainly divides into the house sale type guarantee contract legal nature and the creditor’s rights based on the house sale type contract nature,the legal effect and the creditor according to the trading style guarantee of estate to put forward the case the outsider carries out the dissent case processing four level.The fourth part returns to the judicial practice,faces the trial pain point directly,analyzes the judgment plan that the creditor puts forward the real right confirmation action according to the trading style guarantee of estate,including the trading style guarantee of estate validity judgment plan and the loan contract amount and the house market value measurement plan.