Comparative Study On The Definitions Of Financing Lease

Financing lease is a financial, trade, finance, insurance, securities, legal andtax and so on many different fields of industry, in the financing market is relativelydeveloped USA, financing lease business first, and became the capital market scale isonly second to loan financing. With the development of financial leasing, financingleasing business with the financial industry in the natural competitiveness, potentialdevelopment: first, closely necklace with manufacturing, eliminating the intermediatelinks, reduce the cost to prevent the misuse of funds; second, industry specializationdegree is prominent, is the combination of the financial industry, manufacturingindustry, consulting industry; third, guarantee model of competitive enterprises, donot need to provide additional owned assets as collateral.In the face of a kind of this form of development, China’s law for the legaldefinition of financial leasing (that is, what is the legal relation of financing lease) hasmany obvious shortcomings:First,"finance lease contract law" article237th of the legal definition of theconcept is not clear, extremely easy to cause confusion with other legal concepts, suchas ordinary lease, retained ownership installment sale;Second,"financing lease contract law" article237th of the law can not adapt tothe new demand of the development of financing lease. For example, after saleleaseback leasing company, although the new judicial interpretation that effect aftersale leaseback, but not the why of financing lease make clear answer.Third, the four pillars of financial leasing, civil and commercial law,accounting, tax, financial supervision law inadequate coordination caused greatconfusion in practice.Aimed at these problems, the author first through the principle of seekingfinancing lease origin, concept and method of similarity comparison various countrieslegislation that financing lease, according to the principle that the financial leasing and financing leasing industry in China the development stage, the principle ofconcept based on coupled with the current development of the elements, combinedinto logical structure definition of financial leasing legislation, the author concludedthat the most appropriate definition of the Chinese financing leasing industrydevelopment law.The author thinks, the principle of financing lease in its financing and leasetype guarantee form, then according to the current lease financing development stage,eventually come to define financing lease law factors should include the following:contracts of sale and lease contract relationship, financing lease contract subjectnumber, financing, rental, rental guarantee form, the problem of ownership.Through the origin, research on financial leasing legislation of variouscountries and China’s financial leasing industry development situation, this papersummarizes the factors defining the legal several financing lease. Since the civil lawin China to the financing lease of the legal definition of "contract law" in article twohundred and thirty-seven, then according to the above analysis on the financing leaselaw defined, and according to the provisions of the two hundred and thirty-sevenfinancing lease contract legal definition of "contract law" in our country, the authorthink that "contract law" article two hundred and thirty-seven does not needfundamentally change, but need to improve and clear.First, the lessee is not necessary to explicitly select specific seller and specificlease, skill and judgment to choose leasing lessee may depend on the lessor, the lesseecan choose a broad choice, so it can be the "contract law" article two hundred andthirty-seven "in the financing lease contract is the lessor according to the lessee choiceof the seller, the leased property......" To "finance lease contract refers to the lessoraccording to the lessee’s request......".Second, the "contract law" article two hundred and thirty-seven althoughreferred to the three party, or three party but did not clear the parties can overlap.According to the traditional financing lease, must be three party does not coincidewith the parties, but the development of modern financing lease contract subject tocoincidence."The fact that two hundred and thirty-seven contract law" simply explain the meaning from the text perspective and did not deny the main contract coincidence,but in practice, in addition to the new judicial interpretation after sale leasebackaffirmed the subject overlapping forms, but not sure body coincident other, and theother is recognized by the law therefore, should emphasize the subject legitimacycoincide in legislation.Third, the "rent not mentioned contract law" in article two hundred andthirty-seven. And as mentioned before, the definition of financial leasing shall becomposed of the rent.Fourth, the final ownership of the problem. According to the "contract law"article two hundred and thirty-seven, since it is the lessee to pay rent, so is the lease,the lease ownership nature belong to the lessor. But in order to prevent the behavior inthe lessee without corresponding to the price of the leasehold ownership, financinglease law definition should be defeat.To sum up, the author believes that the financing lease should be defined in thecivil and commercial law:A financial lease contract refers to the lessor according to the lessee’s request, thepurchase of the leased property from the seller and leased to the lessee, the lessee topay rent to the lessor of the contract. The rent shall include the cost of the leasedproperty in the lease period of internal stand body and other reasonable costs andreasonable profits.The seller may be the lessor,the lessee,and can also be the third person.In the following situations, not belong to the financing lease, the lessee:ownership of the1automatic gain the lease after the expiry of the lease;2, the lesseein the lease expires at no additional cost or only pay a nominal rent situation renewallease payment;3, the lessee can not pay the extra price or payment of the purchaseleasehold nominal price under the lease expires;4, according to the contract, thelessee shall have the obligation to lease or purchase of the leased object.As for the coordination between the financing lease of the four pillars of theperfect, because involved too much, I only put forward the developing direction ofsuggestions, think: definition four pillars of the law can not be essentially different, thus produce adverse effect to the practice.