Research On Leagal Issue Of Sale And Leaseback Finance Lease

The characteristicals of financial leasing are financing,guarantee and credit,which makes it play a great role in solving the problem that enterprises are short of funds.The financial leasing business is carried out in more and more diverse forms,and leaseback type financial leasing is one of them.The sale and leaseback is easy to operate,with high financing efficiency and low cost,and has become the first choice for many small and medium-sized enterprises to carry out financial leasing business,and is increasingly used in financial transactions.In order to standardize the handling of financial leasing disputes in judicial practice,China promulgated and implemented the Judicial Interpretation of Financial Leasing in 2014,which briefly explains the sale and leaseback in the practice and provides a legal basis for the development of sale and leaseback financial leasing business.At present,China has not yet introduced a special legal system to make perfect provisions for sale and leaseback financial leasing,and the legal problems that often arise in practice cannot be effectively solved only by the Judicial Interpretation of Financial Leasing.At the same time,the scope of financial leases is defined differently in the relevant provisions,and there is no clear unified standard in judicial practice for the determination of the effectiveness of various sale-and-leaseback financial leases carried out with new types of financial leases to meet the needs of financial transactions.There are three aspects of leaseback financial leases focused in this article:firstly,how to identify leaseback financial leases and distinguish them from private lending contracts;secondly,disputes over the ownership of leased property due to the lessor’s incomplete ownership of the leased property;and thirdly,the dilemma of the right remedy of accelerating the expiration of rent and releasing the leased property in different situations.In view of the above problems,this paper advocates perfecting the legislation on financial leasing,defining leaseback in the form of legislation as a kind of financial leasing,preventing the lessor’s risk of ownership of financial leases by perfecting the system of registration and publicity of financial leases and the system of the right to retrieve leased goods,improving the system of second-hand transactions of leased goods and the system of examination of lessee’s creditworthiness and other supporting systems to promote the effective development of leaseback transactions.At the same time,it also improves the relevant judicial protection and plays the role of arbitration,ADR and other dispute resolution mechanisms in solving disputes over financial leasing transaction.