Research On The Legal Application Of Sale-type Guarantees From The Perspective Of The Civil Code

With the continuous development of China’s economy,the demand for financing is constantly increasing,and real estate guarantee occupies a very important position in the market economy.As a result,a transaction method of "buy-sell security" has gradually emerged.Since the Civil Code does not stipulate this transaction method,the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases only provides a way to handle relevant cases,and does not respond to the effectiveness and nature,thus leading to different or even opposite results in the handling of relevant cases by courts at all levels.In addition to the introduction,the text of this article consists of four parts:The first part reviews past judicial decisions.Prior to the promulgation of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases,the Supreme People’s Court had different determinations on the validity of the sales contract in the "sale-type guarantee",and in one case it was found that it was independent and related to the loan contract,and the loan contract was a conditional termination agreement of the sales contract.In another case,the breach of the prohibition of exile clause in the sales contract was held to be null and void.Before the promulgation of the Civil Code after the promulgation of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases,some courts held that it constituted an assignment of guarantees;There are also cases where the court considers it to be a false expression of intent,so it is invalid;There are also courts that vaguely hold that the sales contract is invalid,but that the role of the sales contract is to provide security.After the promulgation of the Civil Code,some courts also held that it constituted an assignment of security;There are also post-assignment guarantees that the court considers to be constituted.In general,there has always been a situation of disagreement among the courts in the adjudication process.The second part reviews existing doctrinal theories.By classifying the relevant theories into property theory and debt theory,this paper evaluates them separately.Specifically,in the doctrine of assignment of security,ownership of the subject matter needs to be transferred in order for the creditor to be paid in priority for the property,which cannot be met in "sale-type security";In the theory of post-assignment security,the subject matter does not transfer ownership,which seems to be consistent with the "sale-type security",but the creditor only requests the realization of the right to the sale-type security and does not obtain the priority right to payment;Both the subrogation theory and the subrogate settlement reservation theory both hold that the role of the sales contract is to settle,which is inconsistent with the purpose of the parties to provide security for the loan contract;The variation of the debt is also not well explained because it violates the principle of party autonomy.Part Ⅲ provides an analysis of the nature and effectiveness of buy-and-sell security.Because the transaction model of "buy-sell security" has the function of security,it should be affirmed as a kind of security.Because its essence is to create security with a specific property right,it belongs to the security in rem.And because it meets the characteristics of atypical guarantees,it should be regarded as a type of atypical guarantees.In the application of the statutory principle of property rights,it should be appropriately mitigated,and too strict application will cause the rigidity of China’s guarantee system,and on this basis,it should not be considered to violate the legal principle of property rights.The purpose of signing the sales contract between the parties is to provide security for the loan contract,so it is neither a false representation nor a concealment.The relaxed application of the prohibition of flow guarantee clause is also conducive to improving the flexibility of China’s guarantee system,and accordingly,it should not be directly considered that the sales contract is invalid because it violates the prohibition of flow guarantee clause.Part Ⅳ provides suggestions for improving the adjudication of buy-and-sell guarantees.During the trial process,the court should not rigidly require the parties to liquidate the sales contract,so as to respect the parties’ intentions and save judicial resources.In addition,when adjudicating cases related to "sale-type guarantees",the application of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases should be restricted,so as to respect the true intention of the parties and the autonomy of private law.Finally,property registered with advance notice should be recognized,and creditors may enjoy the right to acquire ownership of property pursuant to the contract of sale or the right of priority to be reimbursed under the advance registration.