Legal Analysis Of The Dispute Between Ma And Zheng On The Contract Of Sale And Purchase Of Houses

With the rapid development of China’s market economy,the financing demand is increasing.The traditional guarantee way with a long realization period,cumbersome procedures and difficult financing has given rise to a common new type of private guarantee,housing transaction type guarantee.Housing transaction type guarantee can be divided into open type and hidden type.The parties of hidden type housing transaction type guarantee do not sign a loan contract,but only sign a housing transaction contract to guarantee the loan,and register the housing for preview or record.When the borrower cannot repay the matured debt,the lender requests to fulfill the sale contract and transfer the ownership of the housing.This new type of guarantee has been more controversial in theory and judicial practice,and the relevant laws and judicial interpretations in China have not clarified the housing transaction type guarantee.There are also constant disputes on its nature and effectiveness,and the judicial rules are not uniform,so it is significant to further clarify the relevant issues by analyzing specific cases.Taking the case of Ma and Zheng as an example,combining the theoretical viewpoints and relevant judicial practice,and drawing on the Japanese fake registration system which is very similar to the sale and purchase type guarantee in China,the analysis of the legal nature of the concealed housing transaction type guarantee contract,the existence of legal invalidity,and the effectiveness of the security right are carried out.And we conclude that firstly,the allocation of responsibility and the criteria of the judgment of the concealed housing transaction type guarantee should be clear.The legal nature of the housing transaction type guarantee is a post assignment guarantee and is a kind of atypical guarantee contract,indicating the direction for the analysis of the effectiveness of the contract.Second,the Civil Code amended the prohibition of fluidity;and became a legal effect regulation mode with easing of effectiveness.The regulation of the fluidity guarantee clause should included in the liquidation procedure.At the same time,there does not exist false declaration of collusion,and does not exist statutory invalidity,which is a valid contract.Third,the advance notice registration publicity after the house transaction contract be signed should have the security real right effectiveness,when the debtor fails to perform the debt as agreed,liquidation is a necessary procedure and statutory obligation of the party,and the priority compensation effect can be obtained according to the claims of the secured party.Our country should improve the legislation of the house transaction contract type guarantee,include the post assignment guarantee system,enrich the connotation of advance notice registration,after filing and registration,it can produce the effect equivalent to the real right publicity,and improve the liquidation method of atypical guarantee real rights.