担保型商品房买卖合同纠纷的裁判困境及其出路

Judging Dilemma and Its Way Out for the Disputes of Guaranteed Commercial Housing Contracts

为担保借款合同,当事人同步签署商品房买卖合同,约定借款人不能归还借款本金及利息时,应履行商品房买卖合同。此类具有担保功能的商品房买卖合同,在性质上属于债务清偿协议。法释[2015]18号第24条虽要求当事人以民间借贷提起诉讼,但未否定商品房买卖合同的效力。在确认应还本金及利息及借款人没有如期清偿的前提下,出借人请求移转房屋所有权的,应予支持。

In order to guarantee the loan contract in practice,the parties often sign a commercial house sales contract,stipulating that the borrower cannot return the loan principal and interest,and should perform the commercial house sales contract.Such a commercial house sales contract with a guarantee function is a debt settlement agreement in nature.Article 24 of the Judicial Interpretation of Private Lending Claims requires the parties to file a lawsuit with private lending,but does not deny the validity of the commercial house sales contract.The lender shall request support for the transfer of ownership of the house on the premise that it is confirmed by the judicial judgment that the principal and interest shall be repaid and the borrower fails to pay off as scheduled.