In 2015, the Supreme Court promulgated the "Private Lending Regulations", of which Article 24 made preliminary adjustments and regulations on the handling of transfer guarantees, which can be said to be a big step towards the goal of legislation. However, after careful reading, while this article provides unified judgment standards for trial practice, there are still the following issues worthy of consideration and consideration: First, the applicable premise of Article 24 has been clearly limited to "the parties sign a sales contract as a private loan contract." "Guarantee", when there are a lot of situations where the loan contract relationship and the sales contract relationship are confused in reality, should they all be adjusted by the "transfer guarantee" system? If it needs to be distinguished, how should different types of cases be distinguished to clarify the application of Article 24? Scope; secondly, Article 24, paragraph 2, does not clarify whether the sales contract in the transfer guarantee creates a security function in the sense of property rights. In practice, whether the creditor has the corresponding right to claim payment of the subject matter based on the sales contract, or whether the creditor can Claim compensation for the subject matter based on the security function of this type of sales contract; thirdly, on the premise that the transfer guarantee does not create a security interest, if there is already the appearance of transfer of rights, whether the transfer guarantee can be within a certain range Obtain priority effect against other rights? This article attempts to clarify the context of the above three issues.
1. Conceptual analysis of transfer guarantee and the scope of application of Article 24
(1) Conceptual distinction: transfer guarantee and payment of debt in kind
Transfer Guarantee refers to a situation in which the debtor or a third party transfers the ownership of the subject matter of the guarantee to the creditor in order to guarantee the performance of the debt. If the debtor performs the debt upon expiration, the creditor will return the subject matter. If the debtor fails to perform, the creditor may be compensated for the subject matter. type guarantee. Repossession of debt with property refers to the agreement between the debtor and the creditor that the property owned by the debtor or a third party with the consent of the third party shall be converted into the property of the creditor to pay off the old debt.
There is a certain similarity between transfer of guarantee and property for debt. In appearance, both have an agreement to transfer the ownership of the subject matter, but the time when the expression of intention is formed is usually different: the meaning of transfer of guarantee The expression is generally established before the debt matures; while the expression of intention to repay the debt with something is generally established when the debt matures or after. But the more important difference between the two lies in the substantive level of the content of the expression of intention: when the parties establish a transfer guarantee, they do not express the intention to transfer the ownership of the subject matter, but only the true intention of establishing a guarantee for the loan contract; while the parties reach an agreement to repay the debt with something. Agreement, the problem to be solved is how to liquidate the creditor's rights and debts between the parties after the debt expires - to terminate the previous creditor's rights and debts relationship by transferring the ownership of the subject matter, that is, the two parties have actually reached an agreement to transfer the ownership of the subject matter when signing the sales contract. .
(2) Guiding Case No. 72: Transformation of Transfer Guarantee and Payment of Debt in Property
In Guiding Case No. 72 [(2015) Minyi Zhongzi Case No. 180] , the Supreme Court found that: Tang Long and four others signed multiple loan contracts with Yanhai Company in 2013. By actually lending and accepting the transfer of other people's claims, they obtained creditor's rights to Yanhai Company for a total of 260 million yuan in loans. In order to guarantee the performance of the loan contract, the four persons signed multiple commercial housing pre-sale contracts with Yanhai Company and completed the filing and registration. After the creditor's rights matured one after another, the two parties confirmed the amount of principal and interest owed on the loan through reconciliation. The two parties then re-signed a commercial housing sales contract, stipulating that Yanhai Company would sell the house under its name to four people, and the principal and interest arrears would be converted into paid house purchase money. The remaining house purchase fees would be paid to Yanhai in one lump sum after all the property rights transfer registrations of the subject properties were completed. company.
Judging from the facts ascertained by the court, although the two parties initially expressed their intention to guarantee the loan, when it was determined that the borrower was unable to repay the loan, the two parties had converted the loan guarantee relationship into a sales contract relationship. An agreement was reached. This is a transaction arrangement in which both parties reach an agreement on changing the legal relationship on their own and achieve a balance between the rights and obligations of both parties. Therefore, the Supreme Court held that the commercial housing sales contract signed by the parties in this case did not provide guarantee for the performance of the loan contract between the parties, and there was no scope for the application of Article 24.
[1]
(3) The application of Article 24: limited to the true meaning of “assignment guarantee”
Judging from the ruling rules of Guiding Case No. 72, the application of Article 24 is strictly Limited to the true meaning of "transfer guarantee", this is also consistent with the normative intention of "signing a sales contract as a guarantee for a private loan contract" stipulated in Article 24, paragraph 1: only when the parties sign the sales contract to express their intention to transfer the guarantee Only if there is room for Article 24 to apply.
Although in practice the name of the contract signed by the parties is a "sales contract," the nature of the legal relationship should not be limited by the appearance of the contract, but should be determined by the true intentions of the parties. This is because the appearance standard of the time when the sales contract is concluded is essentially a consideration factor in determining the true intention of the parties, and the final determination should still be made appropriately based on the true intention of the parties. If the content of the agreement between the parties is to transfer the ownership of the subject matter of the sales contract when the debt cannot be performed, or the debtor does not need to perform the sales contract to pay off the debt, or the order of performance agrees that priority should be given to the loan contract, it should be deemed that the two parties have not transferred the sales contract. It has the effect of ownership of the subject matter under the contract, but only has the effect of guaranteeing the performance of the loan contract. However, if the parties clarify the amount of the debt after the debt expires (or make arrangements in advance before the debt expires), expressly fulfill the loan debt by delivering the house, and make a clear agreement on the rights and obligations of both parties in the buyer-seller relationship, In essence, the original creditor-debt relationship is eliminated by changing the debt and transferring the subject matter of the sales contract. At this time, it should be determined that the lender has the effective intention to obtain the ownership of the subject matter, the borrower also has the effective intention to obtain the price (offset the loan), and both parties have reached an agreement to repay the debt with property.
Therefore, identifying the true expression of intention of the parties is a prerequisite for the application of Article 24. This is also reflected in the judgment opinion in Guiding Case No. 72: Before the signing of the "Commercial Housing Sales Contract", the two parties did have a loan contract relationship, and signed the "Commercial Housing Pre-Sale Contract", and registered the house notice in the name of the creditor. Down. However, according to the agreement between the two parties, the purpose of this approach is to guarantee the performance of the debt. If the debtor pays off the debt, the debtor has the right to repurchase it. That is to say, although the "Commercial Housing Pre-Sale Contract" is also a sales contract in form, the true meaning of both parties is only "transfer guarantee". As for the practice of both parties liquidating the debt after the loan expires, converting the loan into house purchase money, and re-entering into a "Commercial Housing Sales Contract", it should be determined that the true intention of both parties is to terminate the loan contract relationship and establish a sales contract by performing the sales contract. relation.
In the process of judicial adjudication, contract agreement is not the only determining factor. Various elements such as the transaction background[2], the arrangement of rights and obligations between the parties[3], and the actual performance[4] are closely related to each other. Only by comprehensively examining the entire transaction structure of the parties can we determine whether there were any mistakes when the parties signed the sales contract. Accurately determine the true meaning of the loan guarantee. After the contract is signed, if the parties reach an agreement on changes in the nature and content of the legal relationship, the changed agreement shall prevail.
We believe that the use of the parties’ true expression of intention as a means of distinguishing the relationship between “assignment of guarantee” and “obligation in property” includes two aspects: First, “assignment of guarantee” cannot absorb “assignment of guarantee”. "Repaying debts in kind", the institutional value of the former and the true intention of the parties lies in the realization of the protection of loan claims, while the latter is the repayment of loan debts, and the judicial power should fully respect the autonomy of the parties in this regard; the second is if the loan contract and the sales contract are combined Coexisting disputes are generally included in the adjustment scope of the "transfer guarantee" system, and the "debt-for-debt" relationship will inevitably fall into the following circular argument: Because the content related to the transfer of the subject matter in the sales contract has the nature of a guarantee, the parties concerned must transfer the subject matter. The agreement violates the ban on exile. Since the "agreement to transfer the subject matter" is both a component of the presumptive condition and an object of legal evaluation, as long as there is an "agreement to transfer the subject matter", the contract is invalid. This obviously does not meet the needs of current judicial practice.
2. Article 24: Failure to explicitly recognize the nature of the security interest in the transfer guarantee
In modern society, the phenomenon of overlapping creditor's rights occurs one after another. In order to balance the relationship between various claims, the law establishes the principle of equitable claims. This means that when the amount of the debtor's liability property remains unchanged, the value of the claims established first may be diluted by the claims established later. The reason why security interests are favored is that they guarantee the creditor's "priority to be repaid."
As Professor Cui Jianyuan said, security rights allow the creditor to exchange the debtor's specific property for consideration and receive priority in repayment when the debtor fails to perform its debts. [5] It can be said that "priority in payment" is an inherent basic attribute of security rights.
However, Article 24, paragraph 2, seems to intentionally avoid the issue of whether the transfer security is a security interest, and only stipulates that the creditor can "apply for the auction of the subject matter of the sales contract to repay the debt." It does not clearly stipulate that creditors can have "priority in receiving payment" for the auction proceeds. Therefore, it is clear that Article 24 does not give the transfer security system the effect of real rights in a normative sense. The fundamental reason for this provision is mainly to give the sales contract in the transfer guarantee the effect of property rights. At the level of normative configuration, it is a type of regulation that creates property rights. In the legal sense of property rights, it obviously exceeds the due authority of judicial interpretation.
In terms of comparative law, there are three main types of property rights change models in the civil law system: the French creditor's rights doctrine model with the lowest requirements for property rights changes is characterized by the fact that the property rights change model is already included in the In a creditor's rights contract, changes in property rights can occur as long as both parties reach an agreement on the creditor's rights. There is no need to reach an agreement on property rights or publicize property rights. The second is the Austrian creditor's rights formalism model, which is characterized by the fact that in addition to reaching a creditor's rights agreement between the parties, changes in property rights also require registration or publicity. The most stringent is the German property rights formalism model. Its characteristic is that the creditor's rights act and the property rights act are independent of each other. In addition to the creditor's rights agreement, the change of property rights also requires an independent property rights agreement and the means of publicity of property rights through registration or delivery.
Our country adopts a property rights change model based on the principle of creditor's rights formalism and the exception of creditor's rights formalism[6]. Under the creditor's rights formalism, whether it is the lack of consensus on the creditor's rights or the lack of means of publicizing property rights, it is difficult to achieve the effect of changing property rights. Therefore, under the creditor's rights formalism, if the transfer guarantee is to be effective as a security property, there should be a consensus on the transfer guarantee + publicity means in the sense of property rights. However, when examining the transfer guarantee (taking the transfer guarantee of real estate as an example), we found that although the sales contract has the intention of guarantee, the real estate as "collateral" does not have any property rights in terms of "security rights". Registration cannot produce the effect of publicizing property rights, and thus cannot produce the legal effect of establishing security rights. It is worth noting that even if the transfer registration is completed, the above effects will not be produced. Because in the transfer of guarantees, the parties have reached an agreement on the creditor's rights of "guarantee", accordingly, the "security rights" should be registered, not the "ownership".
Based on this, when the court treats transfer guarantees, although it can be determined based on the facts of the case that the two parties signed the sales contract for the purpose of guaranteeing the loan contract, it is not appropriate to conclude that the two parties "formed a security interest" "relationship" identification. This is because, although the party concerned has a specific intention to establish a security and the de facto act of signing a sales contract to realize this intention on a subjective level, no security property relationship in the legal sense is created due to the lack of means of publicity of property rights. This is also consistent with the views put forward in the Supreme Court’s “Several Opinions on Further Strengthening Financial Trial Work” (Fafa [2017] No. 22): When faced with new guarantee methods, “in addition to complying with Article 52 of the Contract Law Except for the stipulated circumstances of contract invalidity, the new type of guarantee contract shall be determined to be valid in accordance with the law; if it complies with the provisions of the Property Law on security rights, the validity of its property rights shall also be determined in accordance with the law." It can be seen from this that the Supreme Court still adheres to the principle of "property rights publicity". Although it affirmed the contractual validity of the sales contract in the sense of obligatory rights law, it did not recognize its guarantee effect in the sense of property rights law. The acquisition of the effectiveness of the security interest should still be based on a certain premise, that is, "compliance with the provisions of the Property Law on security interest", specifically, compliance with the provisions on publicity of property rights.
3. Transition stage: priority analysis of transfer guarantees
As analyzed above, it is obviously the general trend to include transfer guarantees in the Civil Code or Property Law, and to stipulate them in parallel with the current guarantee system. . For now, the transfer guarantee does not belong to the security rights expressly stipulated in our country, and Article 24 does not give it priority for payment. The priority of the transfer guarantee has not been affirmed in any normative sense. The title of "guarantee" I'm afraid the name may not be worthy of the name. However, if the transfer guarantee has no guarantee function at all, the method chosen by the parties to sign a sales contract as a guarantee will be meaningless and will not be conducive to the realization of the financing convenience needs of market entities.
Therefore, in the current transitional period, it is a reflection of respecting the autonomy of the parties to confirm the priority of the transfer guarantee to a certain extent in order to realize its guarantee effect.
If the transfer guarantee has priority, its priority is simply reflected in, can the creditor require the performance of the sales contract? (That is, can the creditor obtain the property rights exclusively?) If the creditor cannot demand the performance of the sales contract, can the creditor obtain the priority of the creditor's rights?
(1) In judicial practice, it is difficult to support the transfer secured creditor’s claim for performance of the sales contract
The argument against the creditor’s demand for performance of the sales contract is that the creditor is allowed to obtain property rights. This practice may violate the ban on exile and harm the interests of the debtor or other creditors. Judicial practice prohibits creditors from obtaining property rights through the performance of sales contracts, which is also based on the consideration of the ban on exile: For example, in the (2015) Minshen Zi No. 3051 case, the Supreme Court held that the parties agreed to deliver the house to eliminate the creditor-debt relationship. The agreement "excludes the liquidation procedure for the guaranteed property" and "there is the possibility of substantial injustice due to market changes." However, the above problem has been solved by Article 24 Paragraph 2: Regarding the realization of transfer security, Article 24 Paragraph 2 stipulates that the creditor has a mandatory obligation to liquidate the difference between the value of the subject matter and the debt. In this obligation Even if the creditor chooses to fulfill the sales contract, there is no room for violating the ban on exile.
However, under the current law, even if the creditor has the obligation to liquidate, it seems difficult to support the creditor’s claim for the performance of the sales contract. Before the "Private Lending Regulations" were officially promulgated, the Supreme Court stipulated in Article 25 of the Draft for Comments: "The price agreed in the sales contract is significantly higher or lower than the market price when the contract is performed, and the parties claim that the contract should be performed at the market price. "If the party claims repayment or compensation for the difference between the price of the executed sales contract and the principal and interest of the loan, the People's Court should support it." Judging from the content of the draft, its support is. The continued performance of the sales contract under the premise of liquidation obligations. When the "Private Lending Regulations" were officially released, the theory of liquidation attribution was abandoned and the theory of liquidation punishment was adopted. As to why such a change was made, the Supreme Court did not give a clear explanation in the "Understanding and Application of Private Lending Regulations", which seems to have become a mystery. But in any case, from the changes in the above norms, we can see that even on the premise that the creditor fulfills its liquidation obligations, the Supreme Court is not inclined to support the creditor’s petition for the performance of the sales contract.
The author speculates that the important reason why the Supreme Court abandoned the theory of liquidation ownership is that the performance of the sales contract still lacks the most important link: the sales agreement of both parties. Although there are also opinions that if the debtor is unable to perform when the loan is due, the creditor will obtain the ownership of the house, which does not deviate from the original intention of the parties to enter into the transaction, nor does it violate the meaning that can be inferred when the debtor originally set up the guarantee. However, when interpreting the difference between transfer guarantees and repayment reservations in lieu of things, the Supreme Court mentioned in the "Understanding and Application of Private Lending Regulations" that the main function of the repayment reservations in lieu of things is to set up guarantees for debts in advance, and to use non-performance of debts as the stopping condition. In transfer guarantees, "the seller never intends to sell the subject matter to the other party." The two have their own qualities and cannot be confused. It can be seen that the Supreme Court did not support the interpretation that when the parties signed the sales contract, they expressed the intention that "if the loan cannot be fulfilled when it is due, the sales contract will be performed to realize the guarantee function."
(2) Practical analysis of whether the transfer guarantee can obtain priority in payment based on the appearance of transfer of property rights
Since the seller cannot demand the performance of the sales contract, is it possible to demand the auction price? Priority for payment? In practice, when a party establishes a transfer guarantee by signing a commercial housing sales contract, it is often accompanied by corresponding actions such as contract filing, online signing, notice registration, or delivery of real estate. Whether such actions have the effect of publicity and whether they are sufficient to fight against subsequent creditors First, the attitude in judicial practice is not uniform.
In the (2017) Supreme Court Civil Application Case No. 543, the Supreme Court directly pointed out that according to Article 24 of the "Private Lending Regulations", the creditor in the transfer guarantee can borrow money when the debtor fails to perform its debts. If a person applies for an auction of the subject matter of the sale and receives repayment of claims, he or she only enjoys ordinary claims on the subject matter of sale and purchase, and does not have a priority right to be reimbursed.
In the (2015) Minshenzi No. 3051 case, the borrower registered the pre-sale of commercial housing in the name of the lender for multiple properties developed by himself, and signed a corresponding commercial housing sales contract. The borrower later repaid part of the principal and canceled the pre-sale registration for the two commercial houses. In this regard, the Supreme Court held that the party's conduct of pre-sale registration of commercial housing "has a publicity effect and is effective against third parties, and can restrict the transfer or other disposal of the guaranteed house." In the (2016) Supreme Court Minshen No. 1689 case, the debtor transferred the equity to the creditor in order to guarantee the performance of the debt, and agreed on repurchase terms and liquidation terms if the debt cannot be fulfilled when it expires. In this regard, the Supreme Court held that the agreement between the parties that the debt cannot be repaid when it expires, and the creditor will give priority to repaying the creditor's rights by disposing of the equity, and then return the remaining amount to the debtor, shows that the creditor "enjoys the priority right to repayment of the collateral. rather than ownership”. In these two cases, the attitude of the Supreme Court is obviously different from that in Case No. 543. Comparing the facts of the three cases, it can be found that the difference lies in whether the parties have adopted certain public disclosure methods: in the latter two cases, the equity has been processed Change of registration, commercial housing has been registered for pre-sale. It can be seen that for transfer guarantees that adopt certain publicity means, in individual cases, the court will also recognize its priority for payment based on the doctrine of protecting the appearance of property rights.
We believe that in the aforementioned cases that recognize the priority effect of transfer guarantees, the judgment logic includes two levels: First, according to Article 24, both the loan contract and the sales contract in the transfer guarantee are It is a valid contract. Therefore, the registration (filing) procedures performed by the parties in accordance with the valid contract are also valid registration (filing); secondly, with reference to the protection order of multiple sales contracts, the identification standards of entity rights and interests for excluding enforcement objections, etc., the effective registration (filing) procedures are One of the criteria for judging whether the creditor can enjoy priority (not the only criterion, factors such as whether the price is reasonable and whether the price is paid must still be comprehensively considered). In the case of registration (filing) procedures, the subsequent transactional creditor obviously has a duty of care to review the ownership status of the subject matter before entering into a transaction with the debtor, especially real estate. If the ownership has not been registered in In the name of the debtor, based on the credibility of the real estate registration, the subsequent transaction creditors have no reason to believe that the debtor is the person with the right to dispose of the real estate. Under such circumstances, if the subsequent transactional creditor still signs a sales contract with the debtor, it is difficult to subjectively regard it as good faith. As for ordinary creditors who are behind the scenes, when they establish a creditor-debt relationship with the debtor, the subject matter does not appear to be owned by the debtor. Of course, they will not have any intention of realizing their claims on the subject matter when the debtor is unable to perform when it is due. expect. Therefore, when there is a conflict between the creditor in the transfer guarantee and the subsequent transaction creditor or ordinary creditor regarding the order of payment of the subject matter, it should be affirmed that the transfer secured creditor who has adopted public disclosure means has priority in receiving payment over the latter two.
Theoretically speaking, whether it is the delivery of real estate, contract filing, online signing, notice registration or transfer registration, the appearance has a certain publicity effect. However, if any publicity method is enough to enable the transferring secured creditor to obtain priority in payment, it may also be suspected of unlimited expansion of priority. Therefore, the author believes that it is appropriate to limit the publicity method to the situation of transfer registration. This is similar to the view held by the Supreme Court in 2010 in "Expert Judges of the Supreme People's Court Explain Difficult Issues in Civil and Commercial Judgments·Financial Judgment Guidance Volume": "Although the Property Law does not provide for transfer guarantees, in judicial practice In this case, the form of guarantee should not simply be deemed invalid...especially for real estate transfer guarantees. Since the real estate transfer procedures have been completed, its property rights validity should generally be recognized. "What is mentioned here is only the real estate transfer registration. Only in this case can the transfer guarantee be given priority for payment similar to that of legal security rights. However, it should be clear that this view is also biased in directly affirming the effectiveness of the property rights of the transfer guarantee. Under the premise that the transfer of security is not a security right, its so-called priority is only a certain priority of creditor's rights based on the appearance of property rights, rather than a priority based on property rights.
4. Conclusion
Article 24 of the "Private Lending Regulations" initially attempts to establish adjudicative rules for transfer guarantee disputes. However, transfer guarantees have encountered many problems in my country's judicial practice. The problem cannot be solved solely by judicial interpretation of this article, and it still needs legislative regulation.
Therefore, when applying Article 24, the scope of application should be strict, the principle of party autonomy should be adhered to, and the true intention of the parties should be ascertained whether it is to establish a guarantee or to establish a purchase and sale relationship, etc. Only when the parties have a genuine intention to transfer the security will there be room for the application of Article 24.
Judging from the specific formulation of Article 24, although it makes a bold attempt to construct a system for transfer guarantees, it does not clearly confirm that transfer guarantees have the effect of securing property rights. From the perspective of judicial practice, although the transfer security established by the parties does not achieve the effect of property rights confrontation, if the parties adopt certain means of publicizing property rights, based on the basis of protecting the appearance of property rights, the Supreme Court is inclined to determine that the creditor of the transfer security can Priority to be paid before subsequent creditors, only if the party establishes a transfer security party has its value, and the security purpose of both parties will not be defeated.
Note:
[1] Similar views also appeared in the (2017) Supreme Court Civil Application Case No. 4410.
[2] In the (2013) Mintizi Case No. 135, the reason why Jiamei Real Estate borrowed 3.4 million yuan from Yang Weipeng was to pay off the previous loan, so as to avoid the previous creditor in accordance with the previous " "Commercial Housing Sales Contract", the ownership of the shop involved in the case was obtained for a total price of 3.4 million yuan, and the fact that Yang Weipeng directly transferred 3.4 million yuan to Jiamei Company's previous creditors according to Jiamei Company's instructions is mutually corroborating. Based on this background, the Supreme Court determined that the real intention of Jiamei Company in signing the "Commercial Housing Sales Contract" with Yang Weipeng was not to sell the property involved in the case to him for 3.4 million yuan.
[3] In (2018) Supreme Court Civil Final Case No. 234, the two parties agreed on the number of houses to purchase in the contract (the buyer was a natural person and agreed to purchase 226 sets of commercial houses at one time), the actual house purchase The unit price, the amount of the purchase price paid, the payment method of the so-called intermediary fees, and the seller’s right to repurchase within a certain period of time are all inconsistent with the legal characteristics of a house sales contract with the purpose of paying the purchase price to obtain ownership of the house. This is consistent with the common practice in private lending of providing guarantees for loans by signing commercial housing sales contracts and filing them. Accordingly, the Supreme Court upheld the first-instance finding that the relationship between the two parties was not a real commercial housing sales contract, but a loan-lending legal relationship secured by the sales contract.
[4] In the (2016) Supreme Court Civil Application Case No. 3725, the court found that in addition to the contract being different from the general commercial housing sales relationship, there were also many unreasonable issues in the actual performance of the parties. Point: The seller actually paid more than 4 million yuan in interest to the buyer; after the court sealed the property, both parties delivered the property, but the buyer's possession was not based on normal delivery. Based on the contract stipulations and the actual performance of both parties, the Supreme Court determined that the true intention of both parties was to guarantee the loan.
[5] See Cui Jianyuan: "Property Rights: Norms and Academic Masters—Focusing on the Interpretation Theory of Chinese Property Rights Law" (Volume 2), Tsinghua University Press, 2011 edition, page 736.
[6] For example, the acquisition of property rights such as rural land contract management rights and easements does not require registration to take effect.