Summary:

Author: Jiang Zhiqiang (Makoto finance leases (Shanghai) Co., Ltd.)

The financial leasing industry has flourished in recent years. According to the “2015 China Financial Leasing Industry Development Report” prepared by the China Leasing Alliance and other institutions, as of the end of 2015, the balance of financial leasing contracts was about 4.4 trillion yuan, an increase of about 1.24 billion yuan over the previous year. In the process of rapid development of the financial leasing business, the importance of leasing materials has been neglected.

Leases have a two-tiered role in the financial leasing business. The first layer of role, the construction of financial leasing legal relationship. Financing leases are financed by means of financing. Without a qualified lease, a legal relationship for financial leasing cannot be established. The second layer acts as a guarantee for rent claims. The value of the leased property can guarantee the recovery of the rental creditor's rights and play a risk mitigation role. When the project is out of danger, the leasing company can recover the leased property to compensate the lessee's outstanding rent.

From the perspective of business practice, more people are concerned about the guarantee value of the leased property, as long as the leased property has a guaranteed value, regardless of the ownership and nature of the leased property. This view only pays attention to the guarantee role of the leased property and ignores the role of the leased property in constructing the legal relationship of financial lease. What's more, when the tenant's credit status is good and there is an external guarantee, whether the lease item has a guarantee value is no longer of concern. The choice of leaseholds has no bottom line, and the financial leasing business has become a class loan business. This phenomenon is particularly evident in the sale and leaseback, so this article mainly discusses the issue of leaseholds in the sale and leaseback business.

I. Identification of the legal relationship of financial leasing

Financing leasing transactions are a new type of transaction in which financing and financing are organically combined, and the function of financing is realized by means of melting materials. Both financing and melting are indispensable. For the identification of the legal relationship of financial leasing, China adopts the substantive standard - that is, it must not only have the external form of financial leasing, but also meet the requirements of financial leasing in essence. In accounting, it is required to meet certain accounting standards. In the "Accounting Standards for Business Enterprises No. 21 - Leases", if a certain standard is met, it is recognized as a finance lease. In law, the first paragraph of Article 1 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Financial Leasing Contract Dispute Cases (hereinafter referred to as “financial interpretation of financial leasing”):

"The people's court shall, in accordance with the provisions of Article 237 of the Contract Law, combine the nature, value of the subject matter, the composition of the rent, and the contractual rights and obligations of the parties to determine whether the legal relationship of the financial lease is constituted."

The White Paper on the Trial of Financial Leasing Contract Dispute in 2009-2013 issued by Shanghai No. 1 Intermediate People's Court and Second Intermediate People's Court (hereinafter referred to as “Shanghai Court Financial Leasing Trial White Paper”) clarifies that the value of fictional leases and subject matter is overvalued and rented. The situation is obviously inconsistent with the lessor's capital cost, expense and profit, and should not be considered as a financial lease contract relationship.

According to the above provisions, it can be seen that the financial lease contract has the following characteristics compared with other similar contracts: First, it involves two sets of contracts of the three parties. The three parties refer to the leasing company, the lessee and the seller. The two sets of contracts refer to the purchase contract signed by the leasing company and the seller for the sale and purchase of the leased property, and the financial leasing contract signed by the leasing company and the lessee. Second, the leasing company purchases the designated lease item from the designated seller of the lessee. Third, ownership of the leased property is enjoyed by the leasing company during the lease period. Fourth, the composition of the rent is the cost, cost and reasonable profit of the leasing company to purchase the leased property. Fifth, the ownership of the leased property after the lease expires is agreed by the parties.

As can be seen from the above characteristics, the leased property runs through the entire financial lease transaction. The nature, value, ownership, etc. of the leased property are important factors in judging whether it constitutes a legal relationship of financial lease. The white paper on the trial of financial leasing in Shanghai court clarified that in order to prevent the circumvention of legal acts in the name of sale and leaseback, the focus should be on whether the leased property exists objectively and realistically, and whether the leased property transfer price and the real value of the leased property are reasonably matched. Whether the lessee and the lessor have completed the necessary procedures for the transfer of ownership of the leased property, whether there is a corresponding relationship between the sale and purchase contract and the leased property, etc., as a basis for judging whether the sale and leaseback is true and effective.

There is no uniform financial leasing law in place, and the provisions on leasing materials are scattered in the rules and regulations of various departments. The "Measures for the Supervision and Administration of Financial Leasing Enterprises" formulated by the Ministry of Commerce and the "Administrative Measures for Financial Leasing Companies" formulated by the CBRC stipulate that the leasing company shall legally obtain the ownership of the leased property; the leasing company shall not accept the lessee's undistributed right and has established the mortgage. As the subject matter of the sale and leaseback business, the property that has been seized or seized by the judicial organ as the owner of the sale and leaseback business; the leasing company shall have a reasonable purchase price for the leased property and shall not be in violation of the accounting standards. Low value and high buy.

If the leased property does not comply with the law, or only financing, there is no melting, only the funds are idling, according to the first paragraph of the first paragraph of the financial leasing judicial interpretation, "the name of the financial leasing contract, but does not actually constitute a financial leasing legal relationship The people's court shall deal with it according to the legal relationship of its actual composition." The leasing company cannot claim rights in accordance with the legal relationship of financial leasing, and the interests may be damaged.

Second, the problem of the leased goods

In the process of operating the financial leasing business, the leased goods mainly encountered the following problems: 1. The leased property transferred by the lessee to the leasing company has been mortgaged. That is, the lessee will use the property that has been mortgaged to the bank or other institution as a lease item to carry out the financial leasing business with the leasing company. 2. The lessee does not have ownership of the leased property provided. If the lessee will have leased goods under the financial leasing business with other leasing companies, and then carry out financial leasing business with the leasing company. 3. The value of the lease provided by the lessee is much lower than the amount of financing. 4. During the lease period, the ownership of the leased property is not transferred to the leasing company. 5. The lease item does not exist. The leased property agreed in the finance lease transaction does not exist or has been lost. 6. Other unsuitable conditions for the lease item. If the lease item is not specific, the lease item is a consumable, etc.

3. Does the “lease has been mortgaged” affect the establishment of the legal relationship of financial leasing?

In the sale and leaseback business, the leasing company needs to purchase equipment from the lessee and then lease it back to the lessee. If the leasing company purchases the equipment that has been mortgaged from the lessee, is the contract for the purchase of the equipment signed by the leasing company and the lessee effective? Can the leasing company obtain the ownership of the equipment? If the answer is no, then Obviously not in line with the legal characteristics of financial leasing - during the lease period, the ownership of the leased property belongs to the leasing company.

According to Article 191 of the Property Law, “... during the mortgage period, the mortgagor may not transfer the mortgaged property without the consent of the mortgagee...” The understanding of this provision is controversial in both the theoretical and practical circles. It is believed that the transfer contract for the mortgagor’s transfer of the collateral is invalid without the consent of the mortgagee; it is also considered that the transfer contract is valid without the consent of the mortgagee, but the ownership of the collateral does not change...

In judicial practice, the validity of the contract of assignment is recognized. The Supreme People's Court held this view in the Civil Judgment [(2008) Min Yi Zhong Zi No. 122] in the dispute over the land use right transfer contract between Chongqing Sote Salt Chemical Co., Ltd. and Chongqing Xinwanji Real Estate Development Co., Ltd. . The "National Civil Trial Work Conference Minutes" in 2011 pointed out that "without the consent of the mortgagee to transfer the mortgaged property, the transfer contract cannot be invalidated in accordance with the second paragraph of Article 191 of the Property Law."

Under the premise of recognizing the validity of the transfer contract, is the transferee able to obtain the ownership of the lease under the transfer contract?

If the leased property is movable property, the leased company and the lessee are deemed to have a valid transfer contract, and as long as the parties have delivered, they shall be deemed to constitute the legal relationship of the financial lease.

If the leased property is real property, the leasing company should register in accordance with the law in order to obtain real estate. According to the "Registration of Housing", during the mortgage period, if the mortgagor transfers the ownership of the mortgaged house and applies for the transfer of ownership of the house, it shall submit the identity certificate of the mortgagee, the written document of the mortgagee agreeing to mortgage the house, and other rights. Certificate.” The lessee and the leasing company know that the mortgage house cannot be registered for transfer without obtaining the consent of the mortgagee. Based on this, it can be judged that if the mortgagee has not obtained the consent, that is, if the real estate registration has not been completed, it shall be deemed not to constitute a legal relationship of financial lease.

4. Does the “lessee’s ownership of the leased property” affect the establishment of the legal relationship of financial leasing?

In business practice, some tenants use financial assets that are not available for financing and are limited in financing. Therefore, they use non-ownership assets to carry out financial leasing business with leasing companies, such as leasing leases that have been financed with other leasing companies. Object.

In such cases, if the leasing company knows or should know that the lessee does not own the leased property, the so-called financial leasing transaction between the leasing company and the lessee is only to satisfy the lessee’s need for financing from the leasing company, only the funds It is idling, there is no melting, and it should be determined that it does not constitute a legal relationship for financial leasing. If the leasing company does not know that the lessee does not have ownership of the leased property, and the leasing company obtains the ownership of the leased property in accordance with the provisions of Article 168 of the Property Law, it shall be deemed to constitute the legal relationship of the financial lease.

In particular, according to the judicial interpretation of financial leasing, when a third party deals with a lessee and fails to conduct a financial leasing transaction in accordance with the laws, administrative regulations, industry or regional authorities, it shall be recognized as the third. People do not fulfill their duty of care and do not constitute goodwill.

Up to now, although China has not established a unified financial leasing registration system, relevant departments are actively exploring and trying. The People's Bank of China established the “Finance Lease Registration Publicity System”, and on March 20, 2014, the “Notice on the Use of Financial Leasing Registration and Publicity System for Inquiries about Financial Lease Transactions” stipulated that “banks and other institutions act as financial When handling business such as asset mortgage, pledge and transfer, the company shall strictly examine the ownership and value of the collateral, the pledge and the feasibility of realizing the mortgage and pledge, and log in to the financial leasing registration publicity system to inquire about the relevant subject matter. Ownership status...". The Ministry of Commerce has established the “National Financial Leasing Enterprise Management Information System”, and on December 4, 2014, issued the “Announcement on the Use of the National Financial Leasing Enterprise Management Information System for Leasing Property Registration and Other Issues”, “According to Judicial Interpretation” Article 9 of the relevant regulations, in order to avoid the conflict of leasehold property rights, the Ministry of Commerce will use the national financial leasing enterprise management information system as a leaser registration and inquiry platform."

The scope and main body of these two systems are inconsistent, and the financial leasing registration system needs to be further established and improved. However, as can be seen from the above regulations, the relevant institutions should conduct inquiries in the corresponding system when conducting transactions, otherwise it does not constitute goodwill.

5. Does the “leasing property exist, but the value of the leased property is lower than the financing amount”, does it affect the establishment of the legal relationship of financial leasing?

The “financing” of financial leasing is based on “melting”. If the value of the leased property is lower than the financing amount (“low value and high purchase”), the financing amount has nothing to do with the value of the leased property, and the rent is not purchased by the leasing company. Cost, expenses and reasonable profit composition, but consisting of the funds and interest held by the lessee, is divorced from the nature of financing by means of melting, mainly the circulation of funds, which should be deemed not to constitute a legal relationship of financial leasing. As to the extent to which the value of the leased property is lower than the amount of financing, the legal relationship of the financial lease cannot be determined, and the law does not clearly stipulate. Both the Ministry of Commerce and the China Banking Regulatory Commission stipulate that the leasing company should have a reasonable price for the purchase of the leased property and does not violate the accounting standards.

However, the value of the leased property is higher than the financing amount (“high value and low sale”), and does not affect the determination of the legal relationship of the financial lease. The reasons are as follows: high value and low selling have a higher guarantee for the compensation of the leasing company's financing. In the case of high value and low selling, at the end of the lease term, it is agreed that the lessee has the right to purchase the lease item at a nominal price. From the point of view of this transaction process, the lessee first "sells low" and then "low buys" without damaging the interests of the lessee and without harming the interests of others. In practice, most of the sale and leaseback business does this.

The Wuhan Maritime Court ruled in the Civil Judgment of the dispute between the Nanjing International Leasing Co., Ltd. and Anhui Hengshun Ark Marine Industry Co., Ltd. on the ship sales contract [(2014) Wuhai Fa Shangzi No. 00777]:

"Although the cost of the ship involved in the case is 171 million yuan, which is much higher than the price of the "sales contract" of 60 million yuan, the contract of sale and purchase in the finance lease is different from the sale and purchase contract of the general subject matter. The price of the subject matter of the sale and purchase contract in the financial lease is usually determined by reference to the amount of financing. It is not determined by reference to the actual value of the subject matter. After the lease term expires and the buyer withdraws the full rent, the buyer usually transfers the ownership of the lease item to the lessee at a very low nominal price. Therefore, the plaintiff in this case purchased “Hengshun” at a price of 60 million yuan. The 191" round is in line with the financial leasing industry practice and is legal and effective."

6. Does the “legacy of leasehold ownership not transfer” affect the establishment of the legal relationship of financial leasing?

During the lease period, the ownership of the leased property shall be enjoyed by the leasing company, otherwise it will not meet the characteristics of the legal relationship of financial leasing.

Where the lease item is movable property, the lease item is always owned by the lessee, but the lessee can complete the delivery according to the “occupation change” method, and the ownership of the lease item is transferred to the lessor. If the lease item is real property, the ownership of the lease item must be transferred to the name of the lease company, and the ownership transfer registration must be completed. If the parties intentionally do not handle the registration of ownership transfer or know that the lease item cannot be registered for ownership transfer, it shall be deemed not to constitute a legal relationship for financial lease.

The Supreme People's Court ruled in the Civil Judgment of the Case of Liability Disputes between Cathay Leasing Co., Ltd. and Shandong Xinhai Investment Co., Ltd. and Shandong Xinhai Guarantee Co., Ltd. [(2014) Min Er Zhong Zi No. 109]:

“During the lease period, the project did not obtain the pre-sale permit for commercial housing, so the ownership of the commercial housing (ie the leased property) cannot be transferred from the seller Sanwei Real Estate Co., Ltd. to the lessor Cathay Leasing Company. The actual legal relationship arising from this is As a nominal buyer and lessor of commercial housing, Cathay Leasing Company does not have ownership of the leased property. As a professional financial leasing company, it should also know that the ownership of the leased property cannot be transferred, so its true meaning is not Financial leasing..."

7. Does the “lease does not exist” affect the establishment of the legal relationship of financial leasing?

Financial leasing is a new type of trading model that is financed by means of financing. If there is no physical carrier to reflect "melting", it is only financing, only the idling of funds, of course, can not constitute a legal relationship of financial leasing.

Civil Judgment of the Beijing No. 1 Intermediate People's Court in China's Foreign Trade Financial Leasing Co., Ltd. and China Railway 18th Bureau Group Construction and Installation Engineering Co., Ltd.