Research On Several Legal Issues Of Financial Leasing Contract

Since the world’s first Financial Leasing company was founded in the UnitedStates at1953, financing leasing, a financial instrument that is merely inferior to bankcredit, went through an extreamly high speed development and became the backboneof the financial markets together with bank, trust and securities.Judging from somecountries’financing permeability, China’s Financial Leasing demonstrated a robustdevelopment, but still existed in low level.Permeability of China maintains under5%,while the United States reaches near20%, even our neiborhouring countries Japanand South Korea range a higer rate from5%to12%. Therefore, China’s FinancialLeasing permeability has a large space to be improved in the future.At present, the development of China’s Financial Leasing industry is alsoconfronted with a series of problems, including partial cognition,unbalanceddevelopment, weak risk consciousness,talent shortageand lack of unified industrylaws and regulations.In this thesis, with the prospect to perfect legislation of FinancialLeasing, the author analyzes the major legal problems of Financial Leasing in practiceand puts forward relevant suggestions.As the realistic and legislative background of issues in the thesis, theintroduction part introduces the current situation of the development of FinancialLeasing and its problems in legislation and practice, and points out the researchmethods.The main body of this thesis leaves emphasis on the analysis of legal problems of Financial Leasing in practice.First chapter begins with typical case demonstrating problems of the FinancialLeasing in practice, and then introduces domestic and foreign theory and judicialpractice focusing on these problems and comparative analysis of research situation onthese issues in different countries, which is the theoretical basis of this thesis.The second chapter discusses the scope of subjec of FinancialLeasing.“Interpretation of the Supreme People’s Court on Issues Concerning theApplication of Law for the Trial of Cases of Disputes over Financial LeasingContracts”（draft）(hereinafter referred to as “Interpretation”)specifies the subjectmatters that does not constitute a financial lease relationship, but this article wasdeleted in the formal version. The Interpretation also In this chapter the authordiscusses how laws and regulations privious to Interpretation are regulate on the scopeof subject matters and whether other countries limit the scope or not. Based on this,the author also discusses problems in practice, including real estate (including landand house property）, rights such as equity and earning,and intangible assets such assoftware whether these can be subject matters or not.The third chapter is about contract subject issues. The Laws and Regulations inFinancial Leasing industry are mandatory, that means a contract signed by partieswithout relevant qualification and approval should be invalid. The Interpretationarticle5also regulates the influence of the business license on contract effectiveness,which went through more controversies in consultation process. Therefore, this part isto define qualification of the subject of Financial Leasing Contract.The fourth chapter focuses on the analysis of the effectiveness of the PropertyRegistration. In practice, the subject matters of Financial Leasing is mostly chattel,but only airplanes, ships and vehicles could obtain publicity effect throughregistration, and then effect against bona fide third party. However，ownership of theequipment can not be registered, therefore, lessee could obtain possession of subjectmatter legally through the Financial Leasing. Thus, it is particularly prone to happenthat lessee transfer subject matter without owner’s agreement, and finally the bonafide third party obtains the ownership. The problem above must be solved through system in order to defend the legitimate rights and interests of the owner and ensuretransaction security.The fifth chapter is about the lessor’s recall right.Recall right is a FinancialLeasing right developing in practice. The problems in practice include but not limitedto what is the theoretical basis of it, how to build recall right system, and how tochoose between the rent and recall right, which are also to be discussed in thischapter.