买卖合同担保民间借贷法律问题研究

发布时间：2018-07-12 13:01

本文选题：买卖型担保 + 让与担保　；参考：《辽宁大学》2017年硕士论文

【摘要】：随着社会的不断发展,资本融通的方式越来越多,民间借贷在促进资本运转方面的作用举足轻重,民间借贷的债权人为担保自己的债权在未来能够实现,往往与债务人签订房产买卖合同,并约定如果债务人届期不还贷款或者无力偿还,则履行商品房买卖合同。实践中,此类案件的审理结果五花八门,为了统一裁判,最高法院新近出台的《最高人民法院关于审理民间借贷案件适用法律若干问题的法律规定》第24条对此进行了规定。但是,此项司法解释并未解决存在争议的所有问题。立法者倾向于将买卖合同视为为民间借贷提供担保,确认了买卖合同有担保的功能,但是并未细化具体的担保方式。对于买卖合同是否有效更是只字未提,仅仅是从程序上进行了规定。通过第二款可知当债务人届期不偿还借款时,可以将买卖合同下的标的物进行拍卖以价款受偿,但是债权人对于买卖合同的标的物有没有优先受偿权却未作明确规定。值得注意的是,第二款仅仅规定了一种处理买卖合同标的物的方式,似乎有些单一。由此,有三个焦点问题是必须面对的:一是买卖型担保的属性是什么?二是买卖合同有没有效力?三是债权人对买卖合同标的物是否享有优先受偿权?商品房买卖合同的实质就是担保,而这种担保不是物权法中所规定的任何一种典型的担保方式,而是一种非典型担保——让与担保。由于买卖合同签订以后并没有真正的转移所有权,所以买卖型担保是债权性质的让与担保。最高法院民间借贷司法解释第24条并未对买卖合同的效力明确表态,本文认为买卖合同是通谋虚伪表示,真正有效并发挥作用的是隐藏在买卖合同外表下的让与担保。让与担保合同签订后,若采取合理手段进行公示,则具有物权效力,具有优先受偿权,如果未进行公示,则仅仅是一般的债权,不具有优先受偿权。而由于让与担保未规定入民法,也没有专门的公示方式,因此,就目前来看,如果当事进行预告登记的视为进行了公示,仅仅预售登记并不能认为是进行了公示。对于买卖型担保这种特殊的担保方式,其实现方法仍然要按照担保的实现方式来确定。但是采取何种清算方式,要尊重当事人的约定与选择,法院不宜干预过多。若双方没有约定,或约定无效,以及意见无法达成一致时,法院可以根据多样的方式确定担保标的的价值,不一定必须采取拍卖这种单一的方式。
[Abstract]:With the development of society, there are more and more ways of capital financing. Private lending plays an important role in promoting the operation of capital. The creditors of private lending can guarantee their claims in the future. Often signed with the debtor property sales contract and agreed that if the debtor does not return the loan or unable to repay the performance of commercial housing sales contract. In practice, the trial results of this kind of cases are various. In order to unify the judgment, the Supreme Court recently issued the "Supreme people's Court on the application of a number of issues in the law of folk lending cases," Article 24 to provide for this. However, this judicial interpretation does not resolve all the controversial issues. The legislators tend to regard the sale contract as a guarantee for private loans, which confirms the function of the sale contract, but does not specify the specific way of guarantee. Whether the contract of sale or purchase is valid or not is not mentioned at all, but is only stipulated from the procedure. Through the second paragraph, we know that when the debtor fails to repay the loan, the subject matter under the contract of sale can be auctioned for the payment of the price, but the creditor has not made a clear provision as to whether the subject matter of the contract of sale or purchase has a priority right to be repaid. It is worth noting that paragraph 2 provides only a way to deal with the subject matter of the contract of sale and purchase, which seems to be somewhat unitary. Therefore, there are three key issues that must be faced: first, what is the property of the Sale and purchase guarantee? Is the contract of sale and purchase valid? Third, does the creditor have the priority right to the subject matter of the sale and purchase contract? The essence of commercial housing sale contract is guarantee, and this kind of guarantee is not any typical way of guaranty stipulated in real right law, but a kind of atypical guaranty-assignment guarantee. Since there is no real transfer of ownership after the signing of the contract of sale and purchase, the Sale-sale guarantee is the assignment guarantee of creditor's rights. Article 24 of the judicial interpretation of folk lending by the Supreme Court does not state clearly the validity of the contract of sale and purchase. This article holds that the contract of sale and purchase is a hypocritical expression of conspiracy, and that what is really effective and effective is the guarantee of assignment hidden under the appearance of the contract of sale and purchase. After the contract of assignment security is signed, if it is made public by reasonable means, it has the effect of real right and the right of priority to receive compensation. If it is not published, it is only a general creditor's right and does not have the right of priority to be repaid. But because the assignment guarantee has not been stipulated into the civil law and there is no special way of publicizing, therefore, at present, if the party concerned carries out the notice registration as a public notice, only the pre-sale registration can not be regarded as the public notice. As for the special way of guarantee, the way to realize it should be determined according to the way of guarantee. But what kind of liquidation should be adopted, should respect the parties' agreement and choice, the court should not interfere too much. In the absence of an agreement between the parties or the invalidity of the agreement and in the absence of agreement, the court may determine the value of the subject matter of the security in a variety of ways, without necessarily having to resort to the single method of auction.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.282

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