A Study On The Protection Of The Ownership Of The Financial Lessor

Financial leasing refers to the transaction form where the lessor obtain the lease item in accordance with the tenant’s choice of the lease and the supplier and lease it to the lessee,and the lessee pay the rent..China’s financial leasing industry has developed rapidly in recent years,the relevant laws and regulations are constantly improving.However,in practice,the phenomenon of financial leasing transaction rights violations have still occurred,the number of disputes is very large.Among them,the disputes of the rent and the ownership of lease property are most serious.Debt rent refers to the lessee can not pay the rent in full,the ownership dispute refers to the tenant unauthorized transfer of the lease item or the leasing property on the establishment of other property rights,the lessor of the leasehold ownership of the infringement.The nature of the financial leasing transaction determines that the ownership of the lease property must be separated between the parties.During the course of the transaction,the lease property is usually movable property such as machinery and equipment,and it is occupied by the lessee for a long time.The publicity method of the movable property right is delivery(possession),and as a result,there is a representation that the ownership of the lease belongs to the lessee.Combined with the existence of bona fide acquisition system in our civil law,if the lessee maliciously disposes the leasing property,the third party in good faith can obtain the ownership of the leased property or the right of mortgage.The risk of the ownership of the lessor arises from this.Our protection for the ownership of the lessor is now not enough..The Interpretation of the Supreme People’s Court on the Application of Legal Issues in the Trial of Financial Lease Contract Disputes issued in 2014 gave recognition to three methods used by the lessor to protect their own ownership in practice,including marking the lease,at a significant position on it,authorizing the lessee to mortgage the lease to the lessor himself and registers it in a particular registration system.At present,The existing financial leasing registration system is mainly the financial leasing registration system of the People’s Bank of China Credit Information Center and the financial leasing enterprise management information system of the Ministry of Commerce.Subsequently,the People’s Bank of China and the Ministry of Commerce issued a number of documents that require the relevant subject to check the ownership of assets in the designated registration system when handling assets transferee,mortgage,pledge and other business.However,there are several problems with the judicial interpretation.For instance,the "significant position" of the identification is not clearly defined,the form and the content of the mark has not been provided,and the lease is always at risk of wearing off or malicious concealment,therefore,it’s not easy to manage.The problem also increased the burden on the lessor to protect his rights.For the method of authorized mortgages,it is contrary to the traditional theory of civil law to set up the mortgages for the owner on his own assets,and for the leases without a mortgage registration department,this way is blocked up.As for the method of registration,under the present legal system of our country,the publicity method of movable property rights is possession,and the legality and legitimacy of the registration are worthy studying when there is no other law to stipulate the financial leasing registration system.Throughout the foreign legislation,many countries where financial leasing industry are well-developed have established a corresponding registration system.The financial leasing registration system is of great significance to the protection of the rights and claims of the parties.China should pay attention to the legislation,and establish a sound system of financial leasing registration system at the law level.In this paper,the author analyzes the causes of the risk of the lessor’s ownership in the financial leasing transaction and the present protection measures,focusing on the existing problems of the judicial interpretation.The third chapter discusses the construction of the financial leasing registration system in the aspects of the legislative model of the financial leasing registration system,the principle of the registration,the subject and the way of the registration,the review of the registration,and puts forward the author’s views.The author hold the view that China considers finance leasing transactions an independent form of transactions and when designing the system,we can learn from the international legislative experience;as for the effectiveness of registration,we should choose register confrontation doctrine;as for the registration subject,we should follow the principle of unilateral application;the registration authority should not make a substantive examination of the application for registration.In addition,the registration and enquiry should be as convenient as possible,not to increase the burden on the parties or transaction costs.