The Research About Legal Problems Of Financing Leases

The so-called "finance lease", "Contract Law of People's Republic of China," the first of its interpretation of 237 is "the lessee to the lessor in accordance with the seller, lease options, lease to purchase the seller to provide to the lessee the use of single payment of rent ". Our country " contract law ", to definition and other countries of the world of financing lease, and even the understanding of the international practice is identical. Look from defining, the greatest characteristic of financing lease is " two contracts, tripartite parties ". What is called " tripartite party ", is the lesser, lessee and supplier.( According to the statement of " contract law ", is the seller.) So-called " two contract " include supplier as one party, lesser and as another one party lessee, goods sales contract which both sides signed; As one party, as another one party lessee lesser, lease contract which both sides signed.The developing history in our country of financing lease is not for a long time, it was at first introduced to our country from Japan as a foreign capital importation way. But this kind make a start on mode that tradition lease, one's own development course its can trace back to Britain for middle period of the fifties of the 19th century. The financing lease in the modern meaning evolves from U.S.A. of the fifties of the 20th century, spread to Europe and other countries and regions gradually later.The development of financing lease, has got general concern and extensive application of various countries, in the developed country, it has already become one of three major financial instruments keeping in step with with credit, securities. The development of the economy of our country starts relatively late, it still has disparity greatly that the business of financing lease is compared compared with the developed country, but demonstrate the powerful growth momentum. But it's a pity, the business of financing lease is in economical swift and violent development, have not received the due system support in law, structure to financing lease of law of our country, only embody in " the provision on hearing several questions of financing lease contract dispute case of the Supreme People's Court ", in chapter 14 and other fragmentary laws and regulations of "contract law of the People's Republic of China ", have not formed a set of intact systems and structure modes. This text proceeds with concept of financing lease, has analyzed the legal properties of financing lease, have dissect the intension of financing lease, has analyzed the relation between rights and obligations between party of each side in the legal relation of financing lease, another business to financing lease is tried the question met in practice and summarized and commented in our country, propose relevant legislative suggestions finally, hope to build and construct the legislation which improve financing lease of our country beneficially.This text expound the fact basic legal theory of financing lease partially, launch, describe from concept and property of financing lease. In the definition of the concept, I have compared Britain, U.S.A., France and defined the concept of financing lease, combine the definition of " international financing lease convention ", draw the fixed financing lease contract of our country " contract law ", reveal the characteristic of financing lease " two contracts, tripartite parties " on this basis.In the definition of legal properties, I quote, lease theory, debit and credit sides theory, movable property guarantee trade theory, keep instalment payment of ownership buy and sell theory and nameless agreement theory to financing lease definition of property, reveal " financing " and double attribute " leased " of financing lease.The second part of this text has analyzed the legal relation of financing lease. Has described the characteristic of the legal relation of financing lease at first, from property, the angle of the ownership of form, time and ownership of financing lease, dissect the essence of financing lease. Expound the fact financing lease legal relation lesser, lessee, supplier one's own rights and obligations assign and break a contract remedy secondly, try hard by abstract to lead into concrete financing lease.The third part of this text tries the legal problem faced in practice to analyze in our country to financing lease, this is key of this text. First of all, proceed with typical case, draw the common mode of trying financing lease dispute met in practice. Secondly, explain and dissect to trying the main legal problem that faces in practice. Mainly include the following three points:First, the financing lease type is single. Structure to financing lease of laws and regulations of coming into force at present according to our country, it is its usually mode that is directed primarily to, i.e. lease a type directly, and the financing lease operation modes are varied in practice, the contradiction between the unitarity of this kind of legislation and variety of practice has already prominent day by day in trying practice, the necessary epitaxy of expanding financing lease, enrich the type of financing lease.Second, the ownership of leasing the thing scrap value is belonged to indeterminately. This mainly reflects that in involving in the financing lease dispute of Hong Kong, because often agree on in involving in Hong Kong to " lease purchase the agreement ", lease things and belong to lesser while leasing at the expiration, this conflicts with legal provisions of the hinterland of our country. In a situation that the lessee broke a contract without paying rental, the lesser has often already asked for the rescission of the contract, return and lease things, ask lessees to pay all rental according to the contract again, rental and rental not yet due including expiring. Should this claims get support from court? Try it in practice, the understanding of this question is not unified, even conflict each other.Third, lease making the system with good intention of the thing. This is directed primarily to question of connecting of the new or old law of our country. Without lesser's consent, the lessee will lease things to hire out or transfer without authorization, how is its behavioral effect? " provision on hearing several questions of financing lease contract dispute case of the Supreme People's Court " Inconsistent to the regulation of this question with " real right law in the People's Republic of China ", this becomes and tries the problem had to face in practice too.This text the fourth part legislates to propose relevant legislative suggestions in improving the financing lease of our country, this is one of the focal points herein too. First of all, describe the choice of the legislative mode of financing lease of Our country, advocate setting up the core of regarding special " law of financing lease " as, based on civil law, commercial law, by mode supplemented by financial law, tax revenue laws and regulations and financing insurance system. Secondly, put forward relevant legislative suggestions, This part centres in " the financing lease of the People's Republic of China (draft) "( Draft two times) What supplementary relevant systems to build constructing and " contract law ", For example, the regulation of forbidding terminating an agreement midway, avoiding the clause that undertakes the responsibility dangerously, and the lessee enjoys suggestion of priority, etc..