A Research On The "Guarantee" Ownership In Finance Lease

The promulgation of the "Civil Code" provides a new normative basis for financial leasing transactions.Among them,the most controversial issue is the ownership dispute of the financial lease property,the system conflict based on the ownership of the guarantee,the application of the rules and the legal effect of the confrontation of the ownership registration of the financial lease property.Many of the above controversies stem from the changing attitudes of legislators towards financial leasing.In order to further optimize the business environment,under the directive effect of the World Bank’s Global Business Environment Report in 2019,my country’s guarantee legislation has absorbed some of the practices of functionalism on the basis of formalism,and as a whole has shown the formalism of movable property guarantee legislation.The inherited characteristics mixed with functionalism.The "Civil Code" property rights compendium,on the basis of insisting on the system logic based on the ownership,has made a similar design in the rules for the financial lease ownership transaction with the guarantee function and the chattel mortgage transaction,and both stipulate that "unregistered,no Confronting third parties in good faith".This legislative model has brought a new perspective of interpretation to the issue of the ownership of financial leases,which is already controversial,and has also raised questions about the application of registration in the rules for changes in financial leases.The fundamental reason why the above-mentioned disputes arise on the ownership of financial leases is that the ownership of the lessor has been "functionalized" as security real rights.This is an attempt in our country’s guarantee legislation to adhere to formalism and to absorb functionalism.Although the "Civil Code" puts the relevant rules of financial leasing transactions in the contract,the provisions of Article 388,paragraph 1expand the scope of the guarantee contract and include the "guaranteed" ownership in financial leasing into the broad sense of security.category.The "Civil Code" is mixed and inherited by the characteristics of formalism and functionalism of guarantee legislation,which leads to the need to seek coordination with the basic rules of traditional property rights under the existing legal system.Although my country’s "Civil Code" began to gradually introduce the content of the substantive guarantee concept,it still adheres to the basic principles of the formal guarantee concept.In the process of my country’s "Civil Code" legislation,the mixed acceptance of the formal and substantive views of security is a new legislative model that is different from the traditional civil code and from the Uniform Commercial Code of the United States.The ownership of the financial lease property is stipulated in Articles 757 and 760 of the Civil Code.Article 757 is about the attribution of the leased property when the term of the leased property expires,and Article 760 is about the attribution of the leased property when the contract is invalid due to the lessee.From the perspective of the normative system for determining the ownership of the financial lease property,the determination of the ownership of the leased property should include the ownership of the property in the case of completion of the contract,the invalidity of the contract,the cancellation of the contract,and the termination of the contract.Articles 757 and 760 of the Civil Code only stipulate the attribution of the leased property when the contract is completed and the contract is invalid,and Article 760 only provides provisions on the attribution of the leased property when the contract is invalid.The slightly omitted legislation in the "Civil Code" cannot solve the existing disputes in practice that the ownership of the financial lease property is difficult to determine under the condition of the flaws in the validity of the contract.Through the theoretical interpretation,it can be found that Article 760 of the Civil Code is essentially a non-legal act-based change rule of property rights,and it is in nature that it forms a right of action.The financial lease contract is invalid,and the leased property belongs to the lessee.There are three requirements:(1)The invalidity of the contract is due to the behavior of the lessee;(2)The lessor does not require the lessee to return the leased property;(3)The return of the leased property will significantly reduce the lease The use value of things.Among them,the invalidation of the contract due to the lessee is a necessary element,and the invalidation of the contract is not due to the lessee,and the leased property shall be owned by the lessor after the contract is invalidated in accordance with the principles of general civil law.Condition 2 and Condition 3 are optional requirements,as long as the lessor does not request a return or one of the two conditions will be significantly reduced after the return of the leased property.When the financial lease contract is terminated,the principle of protecting the use value of the leased property and the legitimate rights and interests of the non-defaulting party shall be the principle.The order for determining the ownership of the leased property should refer to the following:(1)The parties’ prior agreement on the ownership of the financial lease shall take precedence;(2)If there is no prior agreement,the parties can negotiate the ownership of the financial lease afterwards;(3)There is no prior agreement and the parties If the negotiation fails,if the termination of the contract is not attributable to both parties,the attribution shall be determined based on the use value of the financial lease item;(4)If there is no prior agreement and the parties fail to negotiate,if the contract is terminated due to one of the parties,the financial lease item shall be considered Under the premise of the use value,the other party has the right to choose the financial lease property.When a financial lease contract is revoked,the cancellation of the contract due to the lessee’s cause is severe enough to be compared with the invalidity of the contract.After that,the contract no longer has the legal effect that the parties originally expected,and the lessee returns the leased property,and the leased property belongs to the lessor.In addition to the uncertainty of the final ownership of the financial lease,in the process of contract performance,the financial lease will also cause disputes about ownership due to the intervention of a bona fide third party.In this regard,Article 745 of the Civil Code stipulates the registration and confrontation rules of financial leases.The specific application of this rule needs to be distinguished from the perspective of interpretive theory.Interpreting from the actual function of the transaction can accurately understand that the newly-added registration confrontation rule in the "Civil Code" is called ownership registration,which is actually a typical paradigm for the registration of secured real rights.Interpreting from the form and appearance of the transaction,the newly-added registration confrontation rules in the "Civil Code" have the legal effect of confronting bona fide third property owners.The interpretation path that distinguishes the transaction mode from the legal effect is the key to realize the unification of the form and function of the ownership registration confrontation system.Based on this,the“secured” ownership in financial leasing can be effective against unsecured creditors and specific third parties once established,and becomes effective against all third parties after registration.Specifically,it includes the buyer,mortgagee,pledgee,seizure or seizure of creditors,creditors involved in distribution,bankruptcy creditors or bankruptcy administrators,but does not include the lien holder of the leased property.Although many contradictions in the application of antagonistic rules for the registration of financial lease ownership can be bridged through interpretation,the specific application of the registration rules still needs to be maintained by a reasonable registration system.Under the premise that the World Bank encourages countries to implement a unified movable property guarantee registration system,the unification of my country’s movable property guarantee registration system into an online registration system based on notification filing is just around the corner.At the same time,the registration system can also be associated with the mortgage registration database of the administrative department for industry and commerce for the parties to inquire.When purchasing a financial lease property,it shall not be regarded as a "good faith third party" if the inspection obligation is not fulfilled.In the construction of the property right registration system in my country,there are many differences between the paper-based registration system constructed by the "Measures for the Registration of Movable Property Mortgage" and the electronic registration system constructed after the promulgation of the "Property Law".A completely electronic registration system based on the Internet is the development direction of my country’s future property registration.In terms of the basic principles of registration,the registration of financial leases should be based on voluntary registration,with compulsory registration as a supplement.The obligor of the financial lease registration should be the lessor in the financial lease transaction,because the lessor has a direct need to register to realize the secured creditor’s rights,and the lessee does not have to bear the registration obligation.Regarding the specific content of registration,human codification should be adopted,supplemented by material codification.Out of the need for the effectiveness of registration and publicity,the basic information of the parties to the financial lease transaction and the financial lease item should be made public.In the review of registration,the basic principles of formal review should be adhered to.This is because a substantive comprehensive review is prone to generate relatively large transaction costs when the types of financial leases are various and the ownership is uncertain,and there is a need for efficiency in civil and commercial transactions.The design purpose of the "guaranteed" ownership of financial leases in the "Civil Code" is to counteract third parties’ good faith acquisitions and give full play to the guarantee value of financial leases.This is an attempt in our country to mix the formalism of guarantee legislation and the functionalism of guarantee legislation,which caters to the development trend of "functionalization" of ownership in the world.However,the introduction of functionalist guarantee legislation has led to an interpretative separation of the entire registration confrontation rules in our country.After the "Civil Code" was promulgated,the impact of the new rules on the traditional legal system is a theoretical and practical issue that needs to be resolved urgently.The registration and confrontation of financial lease ownership can avoid the loss of the lessor’s interests caused by the unauthorized disposal of the lessee.Under the premise of distinguishing the interpretation of the legal structure and legal effects,the legislation model of mixed inheritance in my country can be the follow-up legislation of other civil law systems.Practice provides a "reference system" with reference significance.