房屋买卖式担保研究

发布时间：2018-02-16 06:31

本文关键词： 房屋买卖式担保禁止流押清算义务　出处：《吉林大学》2017年硕士论文　论文类型：学位论文

【摘要】：房屋买卖式担保中同时存在借款合同法律关系和买卖合同法律关系,双方为了担保借款合同的履行而签订买卖合同,双方签订买卖合同的核心在于以标的物所有权的转移来履行债务,买卖合同的签订仅是作为债务履行的方式。由于双方之间原有的债权债务关系是金钱给付之债,债务人以房屋抵偿原有债务的合同构成一种新债,且这两种债务的内容已发生了明显变化,如果从所签订的买卖合同的内容来看,双方均没有消灭原有债权债务关系的意思表示,则此时新旧债务并存,构成新债清偿。从法律解释的角度来看,在新债清偿的解释方法下,只有在受领新的给付之后才消灭原债,替代给付实现不了的风险不再由债权人承担,在存有疑义时将其推定为新债清偿更有利于保护债权人的利益。双方之间虽然没有设立担保物权的行为,但是买卖合同在功能上能够担保原债的履行。一方面,买卖合同通过对于合同双方权利义务的设置能够通过标的物价格的波动和债务不履行时标的物所有权的变动来实现担保债务人还款的目的,另一方面,在债务履行期间或债务履行期届满,双方可经合意将借款本息转化为购房款,使债权人获得标的物的所有权以保障债权人的权利。《民间借贷规定》第24条之所以规定必经清算程序,是因为在标的物价值大大超过被担保债权额的场合由于当事人的直接以房屋抵顶借款的行为存在着损害债务人权利的危险。但是,此种担保方式是否合理涉及价值判断,往往会因为判断主体的不同而结果迥异。法院对清算程序的设置主要考虑的是平衡双方当事人的经济利益,也因此回避认定买卖合同的效力问题。而针对房屋买卖式担保的特殊性,我们不能仅仅考虑经济利益的权衡,更要考虑债权人特别的合同目的和第24条的适用前提,要尽量使双方创设的这种新的交易类型在法律上得到公正的评判,尊重当事人之间对于权利义务的安排。因此,对比房屋买卖式担保中买卖合同与流质条款,可知买卖合同不会因为违反禁止流押的规定而无效,债权人可以请求履行买卖合同。如果必经清算程序,在清算方法和清算形式的运用上,基于成本和效率的考量,拍卖不宜作为积极倡导的方式,应该遵守约定优先原则,在适用清算程序时灵活运用多种变价形式。
[Abstract]:The legal relationship between the loan contract and the sale contract exists simultaneously in the house sale guarantee, and the two sides sign the purchase and sale contract in order to guarantee the performance of the loan contract. The core of the contract of sale and purchase between the two parties is to fulfill the debt by the transfer of ownership of the subject matter, and the signing of the contract of sale and purchase is only a way of performing the debt. Since the original relationship between the two parties is a debt paid by money, The debtor's contract to pay off the original debt with the house constitutes a new debt, and the contents of these two debts have changed markedly, if the contents of the contract of sale and purchase have been entered into, If neither party has any intention of eliminating the original relationship between creditor's rights and debts, then the new and old debts coexist and constitute a new debt settlement. From the angle of legal interpretation, under the interpretation method of the new debt settlement, The original debt will be eliminated only after receiving the new payment, and the risk that the replacement payment will not be realized will no longer be borne by the creditor. In case of doubt, it is more beneficial to protect the interests of the creditor by deducting it as a new debt settlement. Although there is no act of establishing a security interest between the two parties, the contract of sale and purchase can guarantee the performance of the original debt functionally... on the one hand, By setting up the rights and obligations of both parties to the contract, the sale contract can achieve the purpose of guaranteeing the debtor's repayment through the fluctuation of the price of the subject matter and the change of the title of the subject matter when the debt fails to perform, on the other hand, During the period of debt performance or the expiration of the period of debt performance, the two parties may, by mutual agreement, convert the principal and interest of the loan into the purchase of a house, Enabling creditors to acquire ownership of the subject matter in order to protect the rights of creditors. Article 24 of the provisions on Folk Lending stipulates that liquidation procedures must go through, Because in cases where the value of the subject matter exceeds the amount of the secured claim, there is a risk of harming the rights of the debtor as a result of the parties' direct borrowing against the house. However, whether such a form of security is reasonable involves a value judgement, There are often different results because of the different subjects of judgment. The main consideration of the court in setting up the liquidation procedure is to balance the economic interests of both parties. In view of the particularity of the house sale guarantee, we should not only consider the balance of economic interests, but also consider the special contractual purpose of the creditor and the applicable premise of Article 24. This new type of transaction created by both parties should be judged fairly by law and the arrangement of rights and obligations between the parties should be respected. We can see that the contract of sale and purchase will not be invalidated because of the violation of the prohibition on flow of charges, and the creditor may request the performance of the contract of sale. If the liquidation procedure is necessary, the application of the liquidation method and the form of liquidation is based on cost and efficiency considerations. Auction should not be an active way to advocate, should abide by the principle of agreed priority, flexible use of various forms of variable price in the application of liquidation procedures.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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