| On the basis of retaining the formalism guarantee concept,the Civil Code introduces the content of the functionalism guarantee concept.The functionalism guarantee concept takes the economic function of the transaction as the standard for determining the guarantee.As long as the purpose of the transaction is to guarantee the priority repayment of the creditor’s rights,it is a a secured transaction.Functionalism requires that the security interest can obtain the priority effect against the third party after registration,and the rules of confrontation,order and realization are unified.The lessor’s ownership in financial leasing is seriously weakened,which highlights the function of guaranteeing the realization of rental claims,and has a strong color of functionalism.Although the Civil Code still stipulates financial leasing in the contract,the relevant provisions of the security interest and the contract are linked through the rules of "other contracts with security functions".Due to the incomplete introduction of functionalism in the Civil Code,disputes have arisen over the characterization of the lessor’s ownership,and the legal interpretation and applicable standards of the realization path of the lessor’s rights have not yet been unified.This article will take the interpretation and application of norms in judicial practice as the starting point to explore the nature of the lessor’s right to the leased property,and focus on the application by reference to the the realization path of security interest and the realization path based on the contract,and explore the practical issue of how the lessor realizes its rights.The first part discusses the nature of the lessor’s ownership in financial leasing.The coexistence of functionalism and formalism makes the lessor’s ownership appear to be blended with security interest,which leads to differences in the current judicial practice as to whether the lessor can enjoy the "priority of payment" for the price of the leased property.In the Civil Code,the lessor enjoys "secured ownership",that is,the lessor is still the owner in the legal sense,but the function of ownership is mainly reflected in the guarantee of rental claims,and there is a trend of functionalism.The second part discusses the application by reference to the the realization path of security interest.The functionalism introduced in the Civil Code reconstructs the realization path of the lessor’s rental claim with the procedure of obtaining the security interest.When the lessor claims the accelerated expiration of the contract and requests the lessee to pay the remaining rent,it can either choose to apply by reference to the non-litigation procedure to be paid for the price of the leased property or take back the leased property,or to claim the full rent based on the litigation procedure and be compensated for the price of the leased property."Compensation" should be interpreted as "priority of compensation",but without registration,it cannot be effective against a good faith third party,and the judicial practice should further unify the applicable standards of law.The third part is the registration system,which is the basis for application by reference to the realization path of security interest.The Civil Code adds the registration system for financial leasing,so that the registered ownership is effective against a good faith third party,producing the same effect as the security interest,and then applying the same sequence rules as typical security.The "good faith third party" includes the buyer of the leased object and other secured parties.If the registration is completed within ten days after the leased object is delivered,it should have the effect of "super priority".In order to meet the actual needs of financial leasing registration,the specific rules related to financial leasing in the filing system of security interest over movables and the filing system of special chattel should be further improved.The fourth part discusses the realization path based on the financial leasing contract,taking the recall right as a typical example.The recall right is an important way for the lessor to realize the right in the contract law,and the return of full ownership is realized through the effect of the contract.From the perspective of functionalism,the recall right is actually the starting point for the realization of the lessor’s rights,which is equivalent to the pre-procedure of self-realization.Therefore,in the exercising conditions of the recall right,the precondition of "terminating the contract" should be released;in the way of exercising the recall right,the lessor’s self-recovery path can be explained through the "agreement realization" rule of security interest,so that the reclamation right system can be more adapted to the functional trend of ownership,so as to further resolve the conflict between the realization path of the security right and the system of recall right. |
