| Sale and leaseback of movable property is a new type of transaction in which the lessee sells its own movable output to the lessor for financing purposes,and then leases it back from the lessor for use.In recent years,the sale and leaseback transaction has developed rapidly due to its advantages such as convenience,efficiency,and tax saving.It has strong vitality and occupies a large proportion in the practice of financial leasing.However,due to its extremely similar legal relationship with mortgage lending,it has led to judicial It is also increasingly difficult to determine the legal nature of the sale and leaseback in the judgment.On March 1,2014,the Supreme People’s Court "Interpretation on Several Issues Concerning the Application of Law in the Trial of Financial Leasing Contract Disputes"（Fa Shi[2014]No.3）responded to this to a certain extent,but did not eliminate the There are differences in the determination of the legal nature of sale and leaseback,and even "different judgments in the same case" have appeared in judicial practice.Based on the judicial judgment of civil disputes surrounding the sale and leaseback contract,this article sorts out and summarizes the existing judgment ideas,analyzes the reasons for the differences in the judgment,analyzes the insufficiency of the existing judgment path,and draws on the domestic legal nature of the sale and leaseback.The theoretical point of view and extraterritorial legislation expounds the re-understanding of the legal nature of sale and leaseback,and on this basis,proposes a regulatory path for sale and leaseback from the perspective of guarantee.This article is divided into four parts:The first part starts with an empirical analysis of civil disputes related to sale and leaseback in judicial practice.On the one hand,after the implementation of the judicial interpretation of Fa Shi[2014]No.3,the People’s Court has conducted statistics on the determination of the legal nature of sale and leaseback,and found that there are differences in determination,and the effect of dispute resolution is not satisfactory;on the other hand;,Summarizes the existing judgment ideas and reasons,the focus of the judgment,and analyzes the reasons for the judgment differences,so as to clarify the research direction of this article.First,we need to further analyze the legal nature of the sale and leaseback.This is the law of the sale and leaseback in the following article.The cornerstone of regulatory research.The second part is based on the differences in the determination of the legal nature of the sale and leaseback based on judicial practice,and explores the existing views of the academic community on the legal nature of the sale and leaseback,including the atypical financial lease theory,the credit guarantee transaction theory,and the assignment guarantee theory.The admissible and debatable aspects of this view provide a theoretical basis for the study of this article,and thus introduce the third part of this article to re-understand the legal nature of sale and leaseback.The third part is based on the investigation of the current operation of the sale and leaseback of movable property,combined with the analysis and evaluation of the normative provisions in the Chinese laws and judicial interpretations,as well as the research on the legislation and cases that have reference significance outside the territory,and expounds the sale and leaseback of the movable property.Re-recognition of the legal nature shows that it is essentially an unnamed contract.On this basis,under the guidance of functionalism and borrowing from the ownership guarantee in atypical guarantees,the conclusion of substantive guarantee behind the sale and leaseback transaction can be obtained.The fourth part proposes suggestions on the regulation of sale and leaseback from the perspective of guarantee on the basis of the previous practice summary and theoretical analysis.First of all,on the basis of demonstrating that sale and leaseback is not subordinate to financial leasing in legislation,and in view of the shortcomings of the existing financial leasing regulation in practice,the analogy of"financial leasing" under the guidance of formalism is generally proposed.The regulatory path is moving from a functionalist approach to the regulation of sale and leaseback with atypical guarantees;secondly,in response to the current lack of publicity of collateral ownership in the current sale and leaseback,based on the current guarantee legal system,it is proposed to sell and leaseback.The publicity of the ownership of the collateral should adopt registration and confrontation,and the law of guarantee enforcement should also be applied to the extension of the right to compete;finally,for the remedy options for breach of contract that may appear in the future sale and leaseback,the proposed treatment direction should be full respect for the autonomy of the parties.Private remedies are allowed,but at the same time,attention should be paid to the balance of interests between the parties and the legitimate rights and interests of third parties.When necessary,restrictions can be imposed on the relief procedures and the realization of entity rights. |
