Research On The Legal Issues Of The Trading Guarantee

With the development of China’s social economy,the liquidity of funds has been gradually quickened,and more and more non-governmental loans have been made.In order to ensure the safety of loans,various forms of guarantee have begun to appear,during this period,a kind of guarantee,called "sale guarantee",was born,which took the contract of sale as guarantee.The first commercial guarantee cases are not only difficult to find out the facts,there is no clear law to regulate,and gradually become the current judicial practice has to face the research problems.In2015,Article 24 of the Regulations on non-governmental lending and borrowing was introduced,which mainly provides for the adjudication procedure of the sale-type guarantee,which was supposed to solve the different cases of the sale-type guarantee,however,no matter in theory or judicial practice,the disputes about the guarantee of buying and selling are increasing.Therefore,in order to standardize the market order and regulate the economic development,this article will analyze the business guarantee.This paper is composed of three parts: Introduction,text and conclusion.The text is divided into four parts.The content is as follows:The first part gives a basic overview of the type of guarantee.First of all,this paper analyzes the concept and characteristics of the sale guarantee,according to the law of the development of the sale guarantee,adopts the generalized theory to define the sale guarantee,and recognizes the movable property and the real property as the subject matter of the sale guarantee.Secondly,according to the different types of the security,the article divides the type of the security into different types of the subject matter,in order to better distinguish the type of the security.Thirdly,through the analysis of the formation of the track of the type of guarantee,from four aspects to give the reasons for the type of guarantee.The second part focuses on the nature of the sale guarantee.There are many theories about the nature of the guarantee of buying and selling in the theoretical circle,all of which are reasonable.But part of the theory is not the nature of the sale of security,so this article only on the mainstream of the theory of Restitutio in Personam,the transfer of security,the post-transfer of security in detail review.After comparing different theories,considering the nature and the existing significance of the guarantee of sale,it is concluded that the guarantee of sale should be viewed under the theory of real right mitigation,and the particularity of the guarantee of sale should be recognized,it should be recognized that it is not any of the existing forms of security,no need to use the existing forms of security evaluation or regulation,it should be recognized that it is a sale-type security,is a new type of non-typical security.The third part finds out the existing problems from the present situation of judicial adjudication.Based on the current judicial practice,it is clear that the judicial practice is still faced with the confusion of judicial decisions.Even the Supreme Court’s judgments are also faced with the dilemma of different judgments in the same case,the People’s Court’s judgment on the sale guarantee is even more varied.It is important to find out which aspects of judicial decisions are controversial and to analyze the reasons behind the disputes.This paper analyzes the problems and points out the reasons from four aspects: the applicable law,the validity of the contract,the order of compensation,and the liquidation rules.The fourth part is the suggestion of consummating the guarantee of buying and selling.In view of the problems existing in the current judicial practice,this paper studies and probes into the problems,and mainly puts forward the following suggestions: First,the law should be taken as the criterion in the judicial judgment,the relevant provisions of Article 23 of the judicial interpretation of non-governmental loans and loans are applicable,but the legislation of our country should follow the trend of the times and speed up the legislation of other aspects of the guarantee of purchase and sale,so as to provide the legal basis for the People’s Court to adjudicate cases;Second,according to the basic principle of the Party’s autonomy in civil law,we should determine that the meaning of the sale of houses in the sale contract is invalid but the meaning of the sale guarantee is valid;third,we should improve the relevant publicity system of the sale guarantee,especially for the connection between the real property guarantee and the current registration system of our country;fourthly,to perfect the order of repayment of the purchase and sale guarantee,and to determine the status of the purchase and sale guarantee under the existing guarantee mode,fifth,we should establish a sound liquidation system,expand the scope of liquidation,under certain conditions in accordance with the highest interest rate of private loans for liquidation.