Handling Of Financial Lease Contracts In Bankruptcy Liquidation

With the development of the market economy,the financial leasing industry has shifted from a high-speed development to a low-medium-speed stable and high-quality development.Due to the industrial elimination of production-oriented enterprises and the capital reversal problem of financial leasing companies themselves,the financial leasing market also faces exit and elimination.Once a party enters the liquidation procedure,the issue of handling the outstanding financial lease contract is related to the distribution of other creditors’ interests and also involves the balance of interests of both parties.Whether it is the same as other double-service contracts,it is up to the administrator to decide whether to continue to perform.The Bankruptcy Law does not clearly stipulate.Coupled with the different determination of the nature of the financial lease contract,the complexity of the financial lease contract,the balance of interests of the parties,and other issues that are controversial,it has further aggravated the rights of the parties and the game.Judging from the current legal provisions of our country,the general terms of the financial lease contract are relatively complete,but the handling of the contract after entering the bankruptcy process is not much clearer,which has resulted in different understandings of the interests pursued by the parties.This further complicates the problem.Moreover,in practice,the preference is to use "termination of contract" as a solution,so that at present there is no uniform rule for the settlement of financial lease contracts in bankruptcy liquidation.Therefore,the handling of financial leasing contracts in the bankruptcy process needs to be resolved urgently,such as: the identification of financial leasing contracts,the conflict of rights of the relevant parties,and the legal application of financial leasing contracts.The first chapter is an overview.It mainly introduces that the finance lease contract is different from the ordinary contract in bankruptcy liquidation.It has the characteristics of aggregation of financing products and also has a continuous characteristic.The special characteristics of the contract have triggered the bankruptcy liquidation process.Dealing with financing lease contracts.In the process of summarizing the relevant provisions of China’s existing laws on financing lease contracts in bankruptcy liquidation,it was found that there are few provisions on financing lease contracts in the real settlement of bankruptcy liquidation procedures,and it is not clear enough.Further research and analysis of the judicial cases of financial leasing in bankruptcy liquidation found that most of them adopt the judgment of termination of contract or different standards.These various problems reflect the gaps and defects in the system of handling financial lease contracts in bankruptcy liquidation.The second chapter is the analysis part.It analyzes the problems existing in the financing lease contract in bankruptcy and liquidation from a micro perspective,and finds a proper solution.There are three sections in total.The first section analyzes the problem of identifying the financial lease contract,and sorts out different understandings and understandings of the nature of the contract,including "lease theory","borrowing theory","moving property guarantee transaction theory" and so on.Although each doctrine helps to understand the nature of the financial lease contract,there are certain defects;the second section is about the conflict of rights of the relevant parties of the financial lease,mainly related to the principles and restrictions on the exercise of the manager’s right to terminate the contract Issues,the principle and limitation of the exercise of the lessor’s right of retrieval,the conflict between the right of cancellation and the right of retrieval;after analyzing the rights,Section III further discusses the relevant issues of the application of our laws,which has never been fulfilled Whether the financial lease contract is a pending contract analysis: agree to "affirmatively" that,regardless of the mode of operation of the financial lease contract or the maximum value objective of the insolvency law,the provisions of the pending contract should be applied and restricted;The analysis of the attribution of Substantial benefits.Therefore,the manager cannot use the "one-size-fits-all" solution to deal with it,and needs to measure the benefits;finally,the bankruptcy claims are dealt with in three aspects.When the contract is terminated,the standard calculation of "foreseeable rules" and "actual loss rules" The liquidated damages shall be included in the ordinary claims for settlement.When the contract continues to be performed,the unexpired rent shall be settled as a common benefit debt,and the overdue rent or damages shall be settled as general claims.The third chapter corresponds to the second chapter,and puts forward legislative suggestions to improve the financial lease contract in bankruptcy and liquidation from a macro perspective.The first section puts forward the method of identifying the financial lease contract,and uses the combination of formalism and economic substance to determine the legal nature of the financial lease,focusing on the analysis of the contract agreement,ownership of the leased property,transaction results and other factors;the second section Construct a system of interest balance for related subjects.When the lessor goes bankrupt,it can conditionally limit the manager’s contractual performance options,but it can require the lessee to pay the remaining rent in one lump sum to obtain ownership of the subject matter.If the lessee refuses to pay or cannot pay,the management personnel can choose to cancel the contract and retrieve the subject matter;when the lessee is bankrupt,the manager generally needs to cooperate with the property right owner’s right to retrieve,but the manager Measure or be able to better resolve the disputes between the interests of both parties when acquiring the ownership of the leased property.In this case,the right of the property right owner’s right of recovery can be restricted,but if the loss is caused to the lessor,damages should be compensated.In special cases,the right of restitution can also be compensated to protect the interests of the lessor,but the specific cost of the exercise of this right may require the court to make a ruling,and the administrator cannot confirm it directly.Has legal rules to propose adjustments,amend the second paragraph of Article 18 of the Bankruptcy Law,and add rules for the processing of continuing contracts.At the same time,distinguish the different situations of the lessor and the lessee at the time of bankruptcy,and set different processing rules.The former takes continuous performance as the basic processing method,and the latter takes the termination of the contract as the basic processing method.