Research On Exercising Of Bankruptcy Recall Right In Financial Leasing In China

Financial leasing is a new trade form combined with finance funds and assets. In financial leasing, after the bankruptcy of lessee, it is significant for protecting lessor’s interests to realize the guarantee function of the ownership to creditor’s right of rent, which function is fulfilled by realizing bankruptcy recall right. Contract Law Article 242 and Enterprise Bankruptcy Law Article 38 are main provisions about bankruptcy recall right in financial leasing. However,the two provisions only regulate that lessor who is the owner of lease items can enjoy bankruptcy recall right after the bankruptcy of lessee,but related issues have yet to be clearly regulated in relevant legislation so that lessor’s bankruptcy recall right fails to exercise effectively in practice. Therefore, it is urgent to perfect system of bankruptcy recall right in financial leasing and to safeguard it realized smoothly.On the one hand, in financial leasing, after the bankruptcy of lessee,lessor’s bankruptcy recall right is based on their ownership, however,the particularity of the relationship of rights and obligations between lessor and lessee also leads to the particularity of lessor’s ownership. According to the particularity of lessor’s ownership, law circle remains divided about whether lessor can exercise bankruptcy recall right after the bankruptcy of lessee. To this issue, we should confirm the exclusive ownership of lessor in compliance with the traditional ownership theories and move further step to confirm lessor’s bankruptcy recall right.Besides, while confirming lessor’s bankruptcy recall right to protect their interests, we can not ignore the particularity of lessor’s ownership and the special interests that lessee enjoys on lease items, otherwise we will cause imbalance of interests protection between lessor and lessee. With regard to the special interests that lessee enjoys, we can confirm lessor’s obligations of liquidation and interests return to compensate it.On the other hand, to tackle the ambiguity and irrationality in exercising conditions of lessor’s bankruptcy recall right, we should define and perfect the subject, time, counterparty, object and negative condition about the exercising of bankruptcy recall right. To address the application difficulty in exercising way of lessor’s bankruptcy recall right through oneself, lawsuit and arbitration, we can apply notary enforcement which will boast insufficient individual strength in self-retrieval and obviate troubles of time-consuming process in lawsuit and arbitration so that lessor can recall lease items in relative short term.The interests of lessor can be effectively and timely protected by combination of notary enforcement, oneself, lawsuit and arbitration.