Research On The Effectiveness Of Real Estate Purchase And Sale Guarantee

In practice,in order to obtain financing quickly,some debtors will provide security for financing in the form of a sales contract.It is agreed that if the debtor is still unable to pay off the debt when the repayment period expires,the creditor(or other person designated by the creditor)has the right to use the subject matter of the sales contract to pay off the debt.This kind of guarantee method "called buying and selling,which is actually loan guarantee" is called "trading-based guarantee".Disputes arising from real estate trading-based guarantee have emerged in China’s judicial practice since about 2011.However,for over a decade,how to identify and determine that a sales contract is actually a sales guarantee has been a major challenge for judges,and the effectiveness of this form of guarantee has not yet been widely recognized by the judicial practice community in China.Not only are the judicial documents of the courts in various regions highly inconsistent,but the Supreme People’s Court also has different judgments on the true declaration of will of the parties to the case,whether the creditor and debtor have established a guarantee relationship,what kind of guarantee relationship has been established,and how to realize the function of contract guarantee.In addition,in such cases,there is also a widespread phenomenon that the value of the subject matter of the sale is not equal to the amount of the debt.How to balance the protection of creditors’ legitimate rights and interests with the prevention of creditors’ abuse of rights has also become a problem that judges in every real estate trading-based guarantee case need to weigh repeatedly.This article is divided into four chapters.The first chapter is the identification of real estate sale guarantee in judicial adjudication.By analyzing and summarizing the adjudication methods in the adjudication documents made by the Supreme Law of China and the Higher People’s Court,it summarizes the main review points of the current judicial authorities in identifying real estate sale guarantee cases and the parties’ true declaration of will.The second chapter is an overview of the legality and effectiveness of the real estate sales guarantee agreement.It briefly explains the basic requirements for the legality and effectiveness of the real estate sales guarantee agreement,and affirms the legality of the sales guarantee agreement in combination with existing laws and regulations and judicial interpretation.Finally,it differentiates the sales guarantee and other similar concepts based on the characteristics of the sales guarantee,The conclusion is drawn that the real estate purchase and sale type guarantee agreement has guarantee attributes and guarantee effectiveness.Chapter 3is about the external effectiveness of real estate purchase and sale guarantee agreements.Based on theoretical analysis and materials such as trial minutes and judicial judgment documents issued by judicial authorities,this chapter explores the publicity methods of real estate purchase and sale guarantee agreements,the external effectiveness of the agreements after publicity,and the priority order of the guarantor.Chapter 4 is about the implementation of real estate purchase and sale guarantee.Starting from existing laws and regulations and different judicial pathways in different regions,this chapter demonstrates the advantages and disadvantages of the existing liquidation procedures for real estate purchase and sale guarantee.Finally,the author puts forward his views and suggestions on the shortcomings of the liquidation procedures and the conflicts between different judicial authorities in understanding and applying laws and regulations.