The Risk Burden And The Rescission Of Subject Matter Damage Or Lose Of Financial Leasing

Financial leasing is a new type of financing means which integrates financing and leasing-assets.It plays an important role in alleviating the financing difficulties of small and medium-sized enterprises,accelerating the circulation of goods and improving the efficiency of resource allocation.Recent years,China's financial leasing industry has developed quickly,but the value of the subject matter of the financial leasing is relatively large,in the process of carrying out the financial leasing business is also accompanied by a greater risk,especially in the case of accidental damage to the subject matter.The latest promulgation of the Supreme People's Court on the trial of financial leasing contract disputes applicable to the interpretation of legal issues,which provides for the two treatment methods,one is applicable to the risk burden rules,the lessee bear the risk;one is to give the parties the right of rescission,but the law for these two kinds of treatment in the application may face the problem.This article analyzes the relevant legal provisions of our country by means of legal interpretation,and points out that it is missing and tries to give suggestions.In addition to the introductory part,the body consists of four parts.The first part mainly elaborates the risk burden rules of the damage and loss of the subject matter of the financial leasing.Firstly,it introduces the legislation of China and foreign countries and the practice of China's finance leasing business.Secondly,by analyzing the particularity of the rent in the financing lease relationship,indicate that the rent is the consideration for the lessor's financing,rather than the rent in the lease relationship,is the consideration for the use of the lease item;and by analyzing the relationship between the lessor and the tenant's rights and obligations,indicating that the lessee shall continue to pay the rent and the burden the risk of damage and loss the subject matter.The second part elaborates the contract rescission system in the case of the loss of the subject matter of the financial leasing project and its relationship with the risk burden rule in the application.This section explains the conditions and the legal effect of the rescission through the analysis of Article 11,Article 15 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Case of Financial Leasing Contract Disputes and Article 97 of the Contract Law,and through analysis the article 7 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Case of Financial Leasing Contract Disputes and the Purpose of the rescission System,it shall specify that when the lessee requests rescission and the lessor's requirement to apply the risk burden rules,priority applies to rescission system.The third part is mainly based on the first two parts and point out the problem of the risk burden rules and the rescission system,including the application of risk burden rules after the tenant bankruptcy or refused to pay the rent when the lessor's rights can not be guaranteed;the time limit for the application of risk burden is too narrow;the lessee has no right to apply the risk burden rules;how to determine the replacement and the duration of rescission;Whether the insured interest affects the obligation of compensation when the party insures the subject matter.The fourth part analyzes and answers the questions raised in the previous section and puts forward the legislative proposal: the law gives the lessee the right to continue to perform the contract,the right to apply the risk burden rules,and gives the lessor the right of the lessee to provide the guarantee;The scope of application of the burden of the rules from the lessee "possession" of the lease expand to after the "delivery";clear alternatives should be able to ensure the normal use of the lease period;clear the duration of the right of rescission;the distribution of insurance interests.