Research On The Guarantee Of Sales Contract In Private Leading

With the development of society,the main body of private lending has expanded from individuals to enterprises,and from the emergency demand for dismantling small funds to the large financing needs of individuals and enterprises.Due to the high difficulty of loans,complicated approval procedures and other reasons,typical guarantee is not suitable for private lending.In the context of the market,the guarantee of private lending by sales contract can better meet the needs of the market.However,due to the special background of private lending and the complexity of atypical guarantee,it is faced with the blank of legal norms at the beginning of its establishment.Along with the disputes and theories of judgment,this paper sorted out the relevant legal system and combined with typical cases sorted out the changes of the Supreme Court’s thinking on this issue at different stages and summarized the existing problems.According to the Judicial Interpretation of Private Lending,Jiumin Ji,Civil Code and relevant judicial interpretations in 2020,the sales contract established to guarantee private lending is an atypical guarantee contract with guarantee function,and only part of the contents violating the terms of the current collateral are invalid,while the rest are valid.However,there is no more detailed stipulation in the current law on what kind of guarantee effect a sales contract with guarantee function should play.According to different forms of guarantee of sales contract in private lending,this paper conducts classification and effectiveness demonstration,that is,"sales contract+completed transfer registration and filing" belongs to the atypical guarantee of real right,"sales contract+notice registration" and"sales contract+filing registration" belong to the atypical guarantee with the effect of "quasireal right".Only the "sale contract" without any means of "publicity" belongs to the creditor’s atypical guarantee.More detailed discussion should be carried out on the realization rules of sale contract guarantee in private lending.The "sale contract+completed transfer registration and filing" of the atypical guarantee of real right should be applied with reference to the rules of the real right of guarantee,and has the effect of priority against the legal priority and the established typical guarantee or similar guarantor.The creditor has the obligation to cooperate with the debtor to return the subject matter when the debtor performs the private loan contract in advance."Sale contract+notice registration" and "sale contract+record registration" with the effect of"quasi-real right" can learn from the provisions of Japan’s fake registration guarantee,that is,to establish a unified publicity system and a corresponding liquidation system for the atypical guarantee.If the debt is still not performed when it is due,the creditor of such guarantee has the priority against the general creditor and other guarantor after it.Special provisions on prenotice registration and record registration should be carefully considered in the rules of debt performance.The type that only has "sale contract" without any means of "publicity",because it does not have the effect of security property right,can properly cite the relevant theories of unregistered real estate mortgage contract,think that it has the legal effect of double liability liability for breach of contract and guarantee liability,expand the scope of debtor’s liability property in a certain sense,and open the way for the reference of liquidation system.When exhausted,the claim can be based on breach of contract.The perfection of the liquidation system can learn from the Japanese fake registration system,which should enshrine the obligation of compulsory liquidation,but should not restrict the choice of liquidation method.The two parties have agreed to follow the agreement,if the liquidation method is not reached after the maturity of the debt,the court can designate the liquidation method according to its authority.