买卖型担保协议的性质与法律效力探究

On the Nature and Legal Effect of Sale and Purchase Guarantee Agreement

近年来,民间融资交易中出现了以签订买卖合同作为借贷合同之担保的现象,是为“买卖型担保”。最高人民法院2015年针对此行为出台的司法解释并未真正解决买卖型担保协议的效力争议。通过负担行为和处分行为学说探究买卖型担保协议的实质,应以诺成性担保合意的解释方式为宜。而对于该种“类担保契约”,需通过预告登记制度进而使债权人获得优先受偿地位。此外,司法解释理当设置债权人清算义务,从而保障债务人的合法权益。

In recent years,there has been a phenomenon of signing a sales contract as a guarantee for a loan contract in private financing transactions,which is a“sale-type guarantee”.The judicial interpretation issued by the Supreme People’s Court against this behavior in 2015 did not really resolve the dispute over the validity of the sale and purchase security agreement.To explore the essence of the sale-type security agreement through the theory of burden behavior and disposition behavior,it is appropriate to interpret it in the way of consensual guarantee agreement.For this kind of"quasi-guarantee contract",the creditor needs to obtain the priority status of repayment through the advance notice registration system.In addition,the judicial interpretation should set the obligation of the creditor to liquidate,so as to protect the legitimate rights and interests of the debtor.