Research On Financial Leasing In Bankruptcy

This thesis is written on the basis of summing up the clues involving in Property Law from financial leasing contracts and analyzing the rights and interests between the opposite parties.First,the period of the change of ownership is the most significant.And then the lessee's rights in the contract that is molded as common claims can be demonstrated as real right during this period.Besides,the lessor assigns all the benefits,remunerations and risks related to the lease item to the lessee while accepting the rents.The lessor's ownership is merely the same as the security by the lease item provided by the lessee.It can be found by means of substantive doctrine that the lessee has economic ownership of the lease item.But before the lessee obtains legal ownership of the lease item by fulfilling the contract completely,its transitional economic ownership is similar to usufructuary right in legal nature and characters.On the other hand,the lessor shall be paid before other creditors from the value of lease item.However,China's civil law defines the financial leasing in a formalistic method through depicting the appearance of the business practice.The lack of reasonable explanations and adjustments of real rights in the financial leasing contract leads to the inefficiency of the protection of parties.Especially in the circumstances of bankruptcy,the sharpening of contradictions between lessor and lessee will affect all the parties in the procedures for bankruptcy.In other word,the solutions,governed by the existing law for resolving disputes among parties in the financial leasing contract,may damage the legitimate rights and interests of any parties or even the overall benefits.The radical reform of China's laws,regulations and judicial interpretations involving in financial leasing,which were established in the basic theory of civil law,will be undoubtedly difficult.However,the Bankruptcy Law can achieve the reform one step ahead by utilizing its flexibility to equalize the redistribution of benefit while giving consideration to the principle of autonomy of will and the validity of law.Hence,the financial leasing in bankruptcy is selected to discuss to provide reasonable advice and measures under the circumstance of the lack of provisions in Bankruptcy Law.To be specifically,when the lessor goes bankrupt,the lessee shall be allowed to pay the contract price to obtain legal ownership of the lease item.Alternatively,the lessor shall be allowed to assign the interests of contract to third party.Or the relevant administrator shall decide to rescind the contract when aforementioned solutions cannot be applied.When the lessee goes bankrupt,where the lessor abandons legal ownership of the lease item,it shall be deemed as the lessor has the right to realize the obligee's rights by the security by the lease item.