买卖型担保合同的规范适用重构——基于《民间借贷规定》第24条之适用

Restructuring of the Application of the Sale and Purchase Guarantee Contract ——On the Application of Article 24 of the “Private Loan Regulations”

在借贷合同与买卖合同混合时,对新设债之关系的性质及效力认定问题已经成为实务及学理上的疑难问题。对《民间借贷规定》第24条适用范围的限制,是化解此类纠纷的关键所在。在一个债之关系成立后又新设一个债之关系时,实务中对两个合同之间的关系定性有债之更改、后让与担保、代物清偿、代物清偿预约和新债清偿等。将类型化梳理的各类案型导入该条规范的意旨中进行评价,能勾勒出该规范的适用范围,即对于能否适用《民间借贷规定》第24条否定新设债之关系的效力,应从以下方面进行考量:是否有证据证明存在两个独立的债之关系、买卖合同的订立是否在债务清偿期届至之前、买卖合意是否为各方当事人真实意思以及买卖合同订立后是否已经履行。

When the loan contract is mixed with the sales contract,the question of the nature and validity of the relationship between the new debt has become a practical and academic problem.The restriction on the scope of application of Article 24 of the Private Lending Regulations is the key to resolving such disputes.In the case of the establishment of a debt relationship after the establishment of a debt relationship,in practice,the relationship between the two contracts is characterized by a change in debt,post-grant guarantee,surrender settlement,surrender settlement and new debt settlement.The evaluation of the various types of cases sorted into the specification of the article can be used to outline the scope of application of the code,that is,the validity of the relationship between the new debts of Article 24 of the Private Lending Regulations can be applied.It should be considered from the following aspects:whether there is evidence that there is a relationship between two independent debts,whether the conclusion of the sales contract is before the debt settlement period,whether the sale and purchase agreement is true to the parties,and whether the sale contract has been fulfilled.