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Report on Trials of Financial Lease Contract Cases in Shanghai Courts 2014-2018
2014-2018年上海法院融资租赁合同纠纷案件审判情况通报
【法宝引证码】

Report on Trials of Financial Lease Contract Cases in Shanghai Courts 2014-2018

 

2014-2018年上海法院融资租赁合同纠纷案件审判情况通报

(July 29, 2019) (2019年7月29日)

As a financial mode that integrates capital lending and asset leasing and combines trade and technological service, financial lease has become an integral part of the modern service industry and financial industry in China. It has promoted the interaction between capital providers and entrepreneurs, and witnessed rapid development in recent years. In August 2015, the General Office of the State Council issued the Guidelines for Promoting the Sound Development of the Financial Lease Sector, which expressly stated that “financial lease plays an important role in promoting industrial innovation and upgrading, expanding financing channels for micro, small and medium-sized enterprises, propelling growth of emerging industries and improving structural adjustments of the economy”. Thus, financial lease has been recognized as an increasingly important financial mode that serves real economy. According to statistics, as of the end of 2018, the aggregate trading value of financial lease has reached approximately RMB 6,650 billion Yuan, and the number of Chinese financial lease enterprises (excluding single project entities, branches, SPVs and acquired offshore companies) has amounted to more than 10,000, the largest portion of which, about 2,210 are located in Shanghai.1 Not surprisingly, disputes over financial lease increased at the same time and have become one of the main types of financial disputes heard by the people's courts. Such disputes uncover certain pressing issues relating to the legal regimes, as well as self-discipline, supervision and regulation of enterprises and markets. This report is hereby made to give an overview of the cases on financial lease contracts heard by Shanghai courts. 融资租赁作为集融资与融物、贸易与技术服务为一体的金融模式,有效促进了市场资金与产业之间的互动融通,并已成为我国现代服务业、金融业的重要组成部分。近年来,我国融资租赁业呈持续高速发展态势。2015年8月,国务院办公厅下发《关于促进融资租赁行业健康发展的指导意见》,明确指出“融资租赁在推动产业创新升级、拓宽中小微企业融资渠道、带动新兴产业发展和促进经济结构调整等方面发挥着重要作用”,融资租赁作为一种服务实体经济的重要金融方式,在社会经济中的地位进一步提升。据统计,截止2018年底,我国融资租赁企业(不含单一项目公司、分公司、SPV公司和收购海外的公司)数量达1万余家,融资租赁业务总量已达约6.65万亿元人民币。上海融资租赁企业数量约2210家,在全国排名领先。1与此同时,进入诉讼的融资租赁纠纷案件也逐年增多,已成为人民法院审理的一种主要金融纠纷案件类型。案件审理中所反映出来的涉及融资租赁的法律制度供给、企业市场自律、监督管理等问题,亟待解决。现将2014-2018年度上海法院融资租赁合同纠纷案件的审判工作情况通报如下。
I. Characteristics of Financial Lease Contract Cases   一、融资租赁合同纠纷案件特点
A.  Number of cases and disputed amount continue to grow (一)案件数量与标的金额均呈增长态势
Between 2014 and 2018, Shanghai courts accepted 16,055 first instance cases on financial lease contracts, of which 15,667 (or 97.58%) have been concluded. There is an upward trend in the number of cases accepted. Specifically, 952 cases were accepted in 2014, 2,593 in 2015, 2,975 in 2016, 4,319 in 2017 and 5,216 in 2018 (see Figure 1). 2014-2018年,全市法院共受理融资租赁合同纠纷一审案件16,055件,审结15,667件,同期结案率为97.58%。收案数量呈历年增长态势,其中2014年收案952件,2015年收案2,593件,2016年收案2,975件,2017年收案4,319件,2018年收案5,216件(见图一)。
The disputed amount of the accepted cases has amounted to RMB 34.167 billion Yuan (see Figure 2). Both the number of cases and the disputed amount ranked the third among the financial cases of first instance accepted by Shanghai courts. 从案件标的额看,收案标的总金额高达人民币341.67亿元(见图二)。案件数量与标的总金额均位居上海法院受理的一审金融商事案件第三。
 
 
B.  Disputed issues of the cases are concentrated (二)诉讼争点类型集中
A lessee's delay in rental payment is the most common cause of action and still represents the main risk in financial lease. In most of the cases, the lessor, i.e., the financial lease company, initiates an action as the plaintiff to claim for rentals, default interest, liquidated damages and other lease costs. In practice, lessees, repurchasers, guarantors often rely on similar defenses. For instance, lessees typically challenge the quality of the leased assets, the residual value of the leased assets and the amount of rent. Repurchasers typically challenge the validity of the repurchase contracts, repetitive claims of the lessors, repurchase conditions, repurchase price and delivery of repurchased assets. Guarantors typically challenge the validity of the guarantee contracts. 承租人欠付租金是引发纠纷最常见的原因,出租人即融资租赁公司作为原告提起诉讼,诉请承租人支付租金、逾期利息、违约金等租赁费用的案件占绝大多数,由此可见当前融资租赁主要经营风险仍在于承租人的信用违约。诉讼中,承租人、回购人、保证人等被告对抗出租人租金请求权的抗辩理由比较类似,呈定型化的倾向。其中,承租人的抗辩理由多为租赁物质量异议、回收租赁物的余值异议、租金数额异议。回购人的抗辩理由多为回购合同效力异议、出租人重复主张权利异议、回购条件异议、回购价款异议、回购租赁物的交付异议。保证人的抗辩理由主要是保证合同效力异议。
C.  Geographic distribution of the cases is concentrated in several areas (三)案件分布相对集聚
To mitigate the operating risks and control the litigation cost, when entering into a contract, in addition to requiring the lessee to provide adequate guarantee, the financial lease company usually requires both parties subject to the jurisdiction of the court in the place where it is located or where the contract is executed (which often being the place where it is located). As a result, the geographic distribution of the financial lease contract cases is evidently concentrated in the places where financial lease companies are located. In Shanghai, Pudong New Area District ranks first, having 60% of all the financial lease cases, followed by Jing'an District (14%), Huangpu District (8%) and Changning District (7%) (see Figure 3). 基于控制经营风险及诉讼成本的考虑,融资租赁公司在订立合同时除了要求承租人提供尽可能多的担保,还会约定由出租人所在地或合同签订地(往往也是出租人所在地)法院管辖,使得融资租赁合同纠纷案件明显地呈现出集中于融资租赁公司所在地的特征。就上海法院而言,浦东新区的融资租赁案件最多,占总案件数的60%,其次为静安区、黄浦区、长宁区这三个区域,融资租赁案件分别占总案件数的14%、8%、7%(见图三)。
 
D.  Trials by default are common (四)缺席审判普遍存在
As financial lease cases often involve multiple parties and the financial lease companies generally engage in business activities on a multi-regional and geographically dispersed basis, the parties to the disputes are often located in different regions of the country. Most of the lessees are micro, small and medium-sized enterprises in short of funds, and most of the guarantors are the legal representatives, employees or affiliates of the lessees who have no adequate financial strength to resist risks. Once a lessee finds itself in distress or running out of cash, it may transfer the leased assets to escape debts, and the guarantor may transfer the encumbered assets or even disappear. The financial lease company as the lessor is often unable to obtain timely information on the lessee and the guarantor. If no address for service is specified in the financial lease contract, the court often needs to serve notice to the defendants by multiple mails, sometimes even by announcement. Despite successful service, some defendants might choose not to appear in the court for whatever reasons. A large portion of the financial lease cases heard in Shanghai courts in 2018 was conducted in the form of trial by default, which not only extended the duration of litigation but also decreased the trial efficiency. 由于融资租赁案件可能涉及承租人、担保人等众多当事人,而融资租赁公司开展业务具有跨区域性、分散性等特点,因此案件所涉当事人一般分散于全国各地。承租人多为具有融资需求的中小微企业,担保人则多为承租人的法定代表人或企业员工、关联方等个人,经济上抗风险能力均较为薄弱。一旦承租人出现经营困难、资金链断裂,承租人可能转移租赁物以逃避债务,担保人则可能转移担保财产或出逃。融资租赁公司作为出租人,无法及时掌握承租人及担保人的情况,融资租赁合同中又未约定诉讼送达地址,导致起诉后法院经常需要对部分或全部被告进行多次邮寄送达,公告送达也时有发生,而且即便成功送达,部分被告也因各种原因缺席审判。就上海法院2018年审理的融资租赁纠纷案件而言,缺席审判的普遍存在,客观上拉长了办案期限,影响了审判效率。
E.  It is difficult to resolve the disputes through mediation (五)案件调撤难度较大
Because of the difficulty in service of process, deterioration of a lessee's operation and even the disappearance of the lessee or the guarantor, the courts are directly prevented from mediating the disputes. That is why between 2014 and 2018, 74.74% of the cases were solved through judgment. Despite an increase in number, the ratio of the cases dropped or settled after mediation showed a downward tendency (see Figure 4). The main reason is that considering the deteriorating operation and heavy debts of the lessees, the lessors prefer getting a judgment and applying for enforcement as soon as possible, rather than accepting any mediation agreements offered by the lessees for extending the deadline for repayment. 由于送达、承租人经营状况恶化等原因,甚至出现承租人、担保人出逃等现象,直接阻碍了法院开展案件调解工作,故2014年-2018年期间上海法院此类纠纷仍以判决方式为主,占总结案数的74.74%。调撤案件数量虽逐年增多,但调撤率总体上呈现下降趋势(见图四)。这除了公告送达等原因外,主要还因承租人经营恶化、负债严重,出租人对承租人已缺乏信心,很难接受承租人提出的宽限还款期限的调解方案,希望依法判决后尽快申请执行。
 
II. Trend Analysis on Financial Lease Contract Cases   二、融资租赁合同纠纷案件趋势研判
A.  The number of financial lease cases is expected to continue to grow under the current macroeconomic and industrial policy (一)宏观经济及产融政策导向助推融资租赁案件数量将持续增长
The underlying assets of traditional financial lease are limited to special-purpose equipment and other production materials, such as excavators in the construction and engineering industry and high precision printers in the printing industry. As the domestic industrial structures change and the infrastructure demands slowdown, the real economy suffers fluctuations, which has a significant adverse impact on the normal operation and solvency of lessees, thus leading to a great number of disputes and lawsuits involving financial lease. However, during the adjustment of industrial structures, the state has also issued intensive policies to encourage the healthy development of the financial lease industry. Financial lease is expected to flourish in many public sectors, such as agricultural machinery, scientific and technological investment, culture and education, health and infrastructure, as well as sophisticated industries, such as electronic information, big health, energy saving, environmental protection and new energy. As a result, the number of financial lease contract cases is expected to continue to grow, and disputes arising in emerging industries will become more common. 传统融资租赁的标的物集中于实体产业中的特种设备等生产资料,例如建筑工程业的挖掘机、印刷行业的高精密度打印设备等。受国内产业结构调整、基础建设需求放缓的影响,相关实体产业出现波动,对承租人的正常经营和偿付能力造成较大影响,故而引发大量的融资租赁纠纷诉讼。但伴随着产业结构调整,国家密集出台相关政策以鼓励融资租赁业的健康发展,融资租赁将在农机、科投、文化教育、卫生及基础设施等诸多公共领域开展业务,并向电子信息、大生命健康、节能环保及新能源等高精尖产业布局,业务范围将加速扩展,产业对接进一步加快。受此影响,预计融资租赁合同纠纷诉讼案件量总体上仍将继续呈上升趋势,且纠纷将逐步延伸至新兴行业领域。
B.  Innovative financial lease structures will further complicate the legal relations involved in litigation (二)融资租赁交易结构创新导致涉诉法律关系将更加复杂
The basic transaction structure of financial lease involves three parties, i.e., the lessor, the lessee, and the seller, and two legal relations, i.e., the financial lease relation between the lessor and the lessee, and the sale and purchase relation between the lessor and the seller. In order to satisfy the needs for financial innovation and market development, the lessors have, basing on such basic structure, designed more complex financing products, such as leveraged lease, project lease and venture lease. Meanwhile, to control their operating risk and protect their interests to the greatest possible extent, the lessors tend to adopt credit enhancement measures, i.e., involving repurchasers and guarantors into the financial lease transaction structure. In practice, lessees might assign their right to rental for financing purposes, in which case, other parties, such as third-party private equity investment funds and their investors, might also be involved. Therefore, innovative financial lease products will involve more diversified parties and thus lead to more complicated legal relations. 融资租赁基本交易结构涉及出租人、承租人和出卖人三方主体,并涉及两种法律关系,即出租人与承租人之间的融资租赁法律关系以及出租人与出卖人之间的买卖法律关系。而基于金融创新和市场占有的需求,出租人在融资租赁基本交易结构基础上设计出多种更复杂的融资产品,如杠杆租赁、项目租赁、风险租赁等。出租人为控制经营风险,以最大限度保障其权益,往往会采用增加增信措施的方式,将回购人、保证人等均纳入融资租赁的交易体系。实践中,出租人为实现其融资需求,还可能将其融资租赁合同项下的租赁收益权对外转让,此时还可能涉及第三方私募投资基金及其背后投资人等多方主体利益。因此,新类型融资租赁产品牵涉的主体更加多元,导致融资租赁交易中的法律关系更加复杂。
C.  The diversification of leased assets will make the public disclosure of ownership a more pressing issue (三)租赁物类型多样化趋势促使权属公示问题将更为突出
Financial lease is based on the separation of ownership and use right of the leased assets. The ownership of the leased assets rests with the lessor, while the right to possess, use and profit from the leased assets is enjoyed by the lessee. Most of the leased assets are movables, and for public disclosure of ownership transfer, delivery is a requisite condition. Therefore, separation of the ownership and use right makes it possible for the lessee to dispose the leased movables without the authorization of the lessor at any time. If a third party obtains the leased assets in good faith, the safety of financial lease can hardly be guaranteed. For the time being, as the leased assets registration system is yet to be developed, the methods available for a lessor are extremely limited for public disclosure of the ownership of movable leased assets. Besides, when the tradition pattern of leased assets was dominated by machinery and equipment used for production and operation, the current financial lease is being more and more frequently found in emerging fields, and the leased assets are now a much more diversified portfolio of manufacturing equipment, consumer goods, and other equipment, rights and even biological resources, which are difficult to be transferred from one possessor to the other upon delivery. Therefore, how to establish a unified ownership registration and public disclosure system to control the risks in financial lease has become a knotty problem, which needs to be solved as soon as possible. 融资租赁是建立在租赁物所有权与使用权相分离基础上的一种交易方式。租赁物的所有权属于出租人,但其实际占有、使用以及收益均由承租人享有。由于租赁物多为动产,而动产所有权的转移以交付为公示要件,故租赁物所有权和使用权相分离的特点,使得承租人随时可能向他人擅自处分租赁物,若第三人属于善意取得,会对融资租赁交易安全造成重大影响。在目前的融资租赁交易中,出租人对动产类租赁物的所有权予以公示的手段较为有限,租赁物登记制度处于探索阶段。当前,随着融资租赁的业务领域不断向生活性、消费性以及新兴领域扩张和延伸,租赁物正呈现出由生产经营领域的机械设备为主转变为生产设备、消费产品以及较难转移占有的设备、权利甚至生物性资源等的多种类化特征。此种情形下,如何建立统一的权属登记公示机制并明确登记的效力,防范融资租赁交易风险,成为审理该类案件的难题,亟需解决。
D.  The enhanced financing function may make more financing transactions disguised as leases (四)融资功能不断强化引致“名实不符”融资租赁案件可能增加
As its function as a financing tool continues to enhance, sometimes the financial lease is employed for the primary purpose of increasing the leverage ratio and tapping the fullest potential of assets to raise funds, rather than upgrading equipment. Financial lease has become an optional tool to effect other trading purposes, and the substance of its legal relation might deviate from what its name describes. In our trial practice, we can find that some titled financial lease contracts are de facto loan contracts. Some lessors and lessees, taking the advantage of the financing function of financial lease, pursue or conceal their intent of capital lending with invented leased assets to circumvent industrial regulation and legal risks. In particular, they might enter into financial lease contracts for nonexistent leased assets, or exaggerate the value of the leased assets, or falsify the tax invoice of leased assets, or lease equipment that is difficult to be valuated, impractical to be transferred from one possessor to the other or to be specified, or is easy to lose most of its value during normal use, or equipment whose nominal value differs greatly from its actual value. In addition, in some cases, the parties entered into arrangements for investment or sale in the name of financial lease. Defendants of such cases usually rely on relevant judicial interpretations to defend their cases based on the substantial legal relations. Against the backdrop that “financing” is becoming a prioritized purpose in many sectors, the number of such cases is expected to grow further. 随着融资工具功能不断增强,融资租赁业务目的由设备升级更新转为不断提升资产杠杆比例、最大限度盘活资产以获得融资。融资租赁在业务开展过程中成为其他真实交易目的的工具,所涉法律关系出现名实不符情况。在当前的审判实践中,最主要的体现是名为融资租赁、实为借贷案件。出租人与承租人利用融资租赁业务的融资属性,虚构或伪造租赁物,有意追求或者掩盖双方资金借贷的意图,以规避行业监管和法律风险。具体表现为以实际不存在的租赁物签订融资租赁合同,或夸大租赁物的价值、伪造租赁物发票,或以价值难以评估、难以转移占有、难以特定化或价值随使用而消耗较大的设备、表面价值与实际价值不符的设备作为租赁物。此外,部分案件体现为以融资租赁为名、实为投资或买卖。因相关司法解释的规定,被告多会以实质法律关系进行抗辩。在多种行业领域实现资金融通的“融资”目的不断强化的背景下,该类型案件将呈增多趋势。
III. Issues on Financial Lease Contract Cases and Suggested Solutions   三、融资租赁合同纠纷案件应重视的问题及建议
A.  Issues on traditional financial lease cases and suggested solutions (一)传统融资租赁案件的问题及建议
1.  Ambiguous contractual terms 1.合同条款约定不明
The first scenario is that there are no definite provisions on the nature of down payment and deposit. It is common for a financial lease contract to provide that a lessee shall pay the lessor certain amount of down payment or deposit upon execution of the contract, but without any definite provision on the nature and purposes of such payment. Not surprisingly, disputes usually arise over the question whether such down payment or deposit serves as advance payment of the rental or as payment independent from the rental. 一是对首付款、保证金性质约定不明。融资租赁合同约定承租人在签订融资租赁合同时须向出租人支付一定数额的首付款、保证金,但对首付款、保证金的性质以及用途未作明确约定。对于首付款、保证金是作为预付租金冲抵承租人所欠的租金,还是作为独立于租金而向出租人支付的额外费用,当事人往往对此存在较大争议。
The second scenario is that there are no definite provisions on the methods of determining the residual value of leased assets. As the payment of rentals is secured by the leased assets, if a lessor requests for termination of the contract, recovery of the leased assets and compensation for loss, it is necessary to determine the residual value of the leased assets. However, in practice, there is little chance to find in a financial lease contract any definite provision on the methods of assessing or estimating such residual value. Once a dispute arises, the parties often have no choice but to appoint a third party to assess such residual value, which will not only delay the litigation but also lead to additional depreciation of equipment. 二是对租赁物残值的确定方式约定不明。租赁物是租金债权的担保,如出租人主张解除合同、收回租赁物并赔偿损失,则需要对租赁物残值进行确定。但在实践中,融资租赁合同中对租赁物残值使用的评估方法或估算方式无明确约定,一旦发生争议,往往需委托第三方评估,导致诉讼周期延长以及不必要的设备折旧损失。
Suggestion: Lessors should improve their contractual terms, in particular, those concerning the nature and purpose of down payment and deposit, the relation between the quality problem of leased assets and rental payment, the exercising of the right of claims, the liabilities for breach of contract, the methods of assessing the residual value of leased assets and other terms that materially affect the rights and obligations of the parties. 建议:出租人应完善合同条款,重点针对首付款、保证金的性质及用途、租赁物质量问题与支付租金的关系、索赔权利的行使、违约责任的承担、租赁物残值评估方式等影响当事人重要权利义务的条款。
2.  Defective performance of contracts 2.合同履行存在瑕疵
The first scenario is that the lessor collects rental in a non-agreed manner. In principle, the lessee should pay the lessor the down payment or rental as agreed, but in some cases, with the lessor's express or implicit permission, the lessee entrusts its supplier to pay rentals on its behalf. If the supplier fails to pay the lessor the rentals in a timely manner or withholds the rentals without authorization, the lessor may initiate an action against the lessee to claim the rentals. In some other cases, the supplier pays the down payment on behalf of the lessee, and then enters into a loan agreement with the lessee separately. 一是出租人收取租金不规范。一般而言,融资租赁的首付款、租金应当由承租人按约支付给出租人。但部分案件中存在承租人委托供应商转付租金的租金支付模式,出租人对此明示同意或默示认可,而供应商收取租金后未及时向出租人支付租金或擅自截留租金,由此引发出租人通过诉讼方式向承租人主张租金。此外,个别案件中,还存在供应商在代承租人垫付了首付款后,供应商又与承租人另行订立借款协议的情形。
The second scenario is that the lessee ignores quality inspection of leased assets. Most of the lessees are micro, small, and medium-sized enterprises. Due to their urgent need of funds and lack of legal and contractual awareness, the lessees are inclined to ignore the quality inspection of leased assets and take delivery of them directly. In some cases, the lessees blur the distinction between financial lease and ordinary lease or mistake the tripartite legal relation among the seller, the lessor and the lessee as a simple loan or sale relation; therefore, after identifying the quality problem of the leased assets, they tend to refuse to pay rentals and rely on such quality problem as a defense against the lessor's claim for rentals. 二是承租人忽视对租赁物的质量检验。承租人多为具有资金需求的中小微企业,其法律与合同意识不强,容易忽视对交付租赁物的质量检验而直接受领租赁物。部分案件中,承租人将融资租赁与普通租赁进行了混淆,或将融资租赁的出卖人、出租人、承租人三方法律关系误认为单纯的借贷关系或买卖关系,在发现租赁物质量问题后,以拒付租金进行对抗,并在出租人的租金请求权诉讼中以此作为主要抗辩理由。
Suggestion: Lessors should enhance their service awareness, actively improve the financial lease service, provide lessees with safe and convenient methods for rental payment, avoid unnecessary intermediate process of rental payment, prevent third parties from withholding rentals, and avoid other circumstances that might inflate financing risks. Meanwhile, lessees should enhance their legal awareness, carefully check whether the model of the delivered assets is consistent with the provisions of the finance lease contract, and strengthen the quality inspection of the leased assets. 建议:出租人应增强服务意识,主动改善融资租赁服务,为承租人提供安全且便利的租金支付方式,避免租金支付的非必要中间流转环节,防止发生第三方截流租金等放大融资风险的情况。承租人应提高法律意识,认真核对交付租赁物的型号与融资租赁合同约定是否相符,加强交付租赁物的质量检验。
3.  Disputes over the disposal of leased assets 3.违约处置具有争议
The first scenario is that the lessor repossesses leased assets without any notice. Under financial lease contracts, the lessor usually takes its contractual advantage to incorporate a term which provides that it has the right to repossess the leased assets when the lessee breaches the contract. In some cases, upon a breach by the lessee, the lessor took back the leased assets without any notice. In such case, the lessee typically asserts that despite its breach, the lessor's recovery of leased assets without giving a notice and a reasonable time period is inconsistent with relevant laws. The parties often dispute over the nature of the lessor's recovery of the leased assets without a notice, whether such an act constitutes lessor's notice of termination of the contract or merely represents lessor's exercise of right of later execution. 一是出租人自行收回租赁物。出租人作为合同优势地位一方,通常通过合同条款约定承租人违约时出租人可以收回租赁物。一旦出现承租人违约事实,出租人在未通知承租人的情况下,直接自行取回租赁物。对于出租人擅自收回租赁物的行为,承租人认为尽管其确已违约,但出租人未经催告并给予其合理期限即擅自收回租赁物,不符合法律的相关规定。而出租人擅自收回租赁物行为的性质,系出租人催告解约的一种通知方式,抑或仅仅系出租人行使先履行抗辩权的手段,当事人对此争议较大。
The second scenario is that the lessor disposes the leased assets at its discretion. After recovery of the leased assets, some lessors directly sell or otherwise dispose the assets. In litigation, the lessees typically challenge the disposal value of the leased assets and assert that the sale price is obviously lower than the actual value. In such case, as the leased assets have been delivered, it is impractical to determine the actual value upon a third party's evaluation. Therefore, such act of the lessors is highly likely to lead to disputes and litigations. 二是出租人自行处置租赁物。在收回租赁物后,有的出租人自行对租赁物进行了折价变卖、处置。一旦涉诉,承租人往往对租赁物的处置价值提出异议,认为出租人变卖的价值明显低于其实际价值。因租赁物已专卖并交付他人,已无法通过第三方评估等方式确定其实际价值,引发争议和诉讼风险。
The third scenario is that the agreed total amount of rental and liquidated damages are unreasonably high. Usually, the rental under a financial lease contract should be determined based on the full or substantial purchase cost of the leased assets and the lessor's reasonable profit. But there is no definite standard for determining the lessor's reasonable profit. For instance, the rentals under some financial lease contracts exceed the purchase price of the leased assets by 24% or even 36%, and in addition to the high rentals, the lessees are also required to pay liquidated damages upon breach of contract. Another example is that a financial lease contract provides that, if the lessee breaches the contract, in addition to requiring the nonperforming lessee to pay liquidated damages, the lessor is also entitled to the deposit paid by the lessee. Therefore, the lessee makes a defense that the total amount of rental and liquidated damages is too high. 三是约定的租金总额、违约金明显过高。通常情况下,融资租赁合同的租金应根据购买租赁物的大部分或者全部成本以及出租人的合理利润确定,但融资租赁的合理利润缺少确定标准。例如,有的融资租赁合同约定的租金超过购买租赁物价格的24%甚至36%,承租人违约时,还要承担支付违约金的责任。又如,出租人在合同条款中除对承租人的违约行为约定了违约金外,还约定了承租人违约时其交纳的保证金不予退还。由此引发承租人提出租金总额、违约金过高的抗辩。
Suggestion: First, as the provider of the standard contract, the lessor shall, at the request of the lessee, present and explain the terms of the contract, especially those exempting or limiting its liabilities, in order to avoid any dispute over the validity of the terms of the contract. Second, the lessor should request the lessee to undertake liabilities for breach of contract in accordance with the contract and applicable laws rather than disposing the leased assets at its own discretion, so as to avoid affecting the lessee's normal production and operation, further worsening the lessee's performance ability and intensifying the conflict. Third, the lessor should set reasonable amounts of rental and liquidated damages, reasonable standards for deciding the liquidated damages, and refrain from pursuing unreasonably high profits. 建议:首先,出租方作为格式合同提供方,应当在开展业务时就合同条款尤其是免除或限制其责任条款应承租人要求进行提示和说明,避免引发合同条款效力争议。其次,出租人应严格按照合同和法律规定,依法追究承租人的违约责任,避免因不合法的违约处置行为影响了承租人的正常生产经营,致使承租人履约能力进一步恶化,激化矛盾冲突。第三,出租人应在融资租赁合同中合理约定租金、违约金等,合理确定违约金标准,抑制高利化不良趋势。
B.  Issues on sale and leaseback cases and suggested solutions (二)售后回租型融资租赁案件的问题及建议
1.  Lessors fail to strictly check the authenticity of leased assets 1.出租人对租赁物的真实性等疏于审查
Under the sale-and-leaseback mode, lessees take lease of their own assets, and the parties are inclined to pay more attention to the financing part but less attention to the assets leasing part. Therefore, the authenticity of leased assets needs to be checked and confirmed by the parties before entering into the contract. For instance, under certain sale-and-leaseback contracts, there actually exists no leased assets; if the lessor under such a contract initiates a lawsuit to claim rentals from the breaching lessee, the lessee might, on basis of the non-existence of the leased asset, defend itself by requesting the court to declare the contract void and invalid or lodge a counterclaim. In addition, certain sale-and-leaseback contracts fail to clearly specify the leased assets. Usually, a lessee takes lease under a sale-and-leaseback contract only part of its owned assets or equipment. If the lessor fails to check or specify the leased assets, a third party may dispute with the lessor on the basis of the defects in the ownership or acquisition in good faith. Financial lease has the dual characteristics of financing and assets leasing; therefore, if there is no leased asset or the leased asset fails to be specified, the transaction should be deemed as simple capital lending without assets leasing, which frustrates the purpose of the financial lease and will definitely undermine its legal status. Furthermore, there is also controversy on whether a lessee may transfer to the lessor leased assets subject to restrictions on right of disposal. 售后回租以承租人的自有物作为融资租赁标的,租赁物是否真实存在需由合同双方在缔约过程中进行审查和确认,亦因此售后回租中较易发生重融资、轻融物的违规倾向。比如,部分售后回租合同中租赁物实际不存在,承租人出现违约情形后,出租人提起租金请求权之诉,承租人以租赁物实际不存在、请求确认售后回租合同无效而进行抗辩或提起反诉。又如,部分售后回租合同约定的租赁物不明确,通常是承租人自有设备或资产较多而售后回租合同约定的租赁标的物仅为其中部分设备或资产,出租人对租赁物未予以审核和进行确定,引发第三人因租赁物原有的所有权瑕疵、善意取得等原因,与出租人发生争议。融资租赁具有融资与融物的双重属性,因此若租赁物实际不存在或不明确,应认为系脱离融物而融资,实质等同于借贷融资行为,背离了融资租赁制度的设计初衷,将动摇其合法性根基。此外,承租人对其自有的处分权受限的标的物能否作为租赁物转让给出租人,亦存在争议。
Suggestion: Although a lessor is not expressly required by the law to check the leased assets, the authenticity and specification of the leased assets is still an important element for identifying a sale-and-leaseback transaction. Therefore, lessors should strictly review the certificates provided by the lessees (i.e., the vendors) to prove their right to dispose of the leased assets, including purchase invoices, contracts, specifications, quality certificates, etc., inspect on-site the authenticity of the leased assets, and check, mark and register the transferred assets in detail. 建议:尽管法律并未明确规定出租人对租赁物的审核义务,但租赁物是否真实存在并特定化系识别构成售后回租法律关系的重要依据。因此出租人应严格审查承租人(即出卖人)对转让租赁物具有处分权的权利凭证(包括购买发票、合同、说明书、合格证等),现场查验租赁物的真实性,详细清点、标识转让的租赁物并登记造册。
2.  It is difficult to determine the actual value of the leased assets 2.租赁物的实际价值难以确定
Under the direct lease mode, the leased assets are generally purchased from a third-party vendor, and if there is a dispute over the actual value thereof, it can be determined based on their market value as well as the relevant purchase certificates (e.g., tax invoices). Under the sale-and-leaseback mode, however, as the vendor is also the lessee and some leased assets are produced by the lessee itself while others are purchased from the resale market, their market value is hard to determine. In the absence of the relevant purchase certificates, a dispute is quite likely to arise. The determination of the actual value is crucial for answering the question whether the transfer price is reasonable. In accordance with the rules issued by the Ministry of Commerce and the China Banking and Insurance Regulatory Commission, when purchasing the leased assets, financial lease companies shall refer to reasonable pricing basis which does not violate applicable accounting standards. In such cases, lessees often deny the existence of sale and leaseback by asserting that there is an unreasonably great gap between the actual value and the transfer price of the leased assets. Such gap takes two forms, i.e., “high price for low value” or “low price for high value”. Due to the privileged position held by lessors, most of the leaseback transactions take the form of “low price for high value”, such as “purchase at half-price or discounted price”. There are controversies over the question whether such act should be recognized as a sale-and-leaseback transaction, in which the free will of the parties should be respected to the extent no legitimate rights and interests of a third party is damaged, or be identified as a lending transaction, in which the true intention of the parties is financing and intervention by judicial authorities is justified as the equity principle is violated. In a minority of cases, there are also circumstances where low-value assets are purchased at a high price, and the lessees often argue that the lessors have entered into lending transactions in the disguise of sale and leaseback, thus going beyond their scope of business. 直租模式下,租赁物一般系从第三方出卖人处购买,如对租赁物实际价值存在争议可根据该租赁物的市场价值并结合相关的购买凭证如发票等予以确定。而售后回租案件中,因出卖人与承租人主体同一,有的租赁物是承租人自己生产制作,有的租赁物则是从二手市场购买,其市场价值难以判断,又无相关购买凭证予以佐证,极易发生争议。租赁物实际价值的确定涉及双方的转让价格是否合理,商务部、中国银监会相关监管规定均要求融资租赁公司对标的物的买入应有合理的、不违反会计准则的定价依据作为参考。在该类案件中,承租人往往以租赁物的实际价值与转让价格不匹配或严重背离来否认双方之间的售后回租法律关系。租赁物转让价格与实际价值不匹配表现为两种形态,即“低值高买”或“高值低买”。当前售后回租案件中,由于出租人处于主导和强势地位,多表现为“半价购”、“差价购”等“高值低买”回租情形,对此行为的性质能否认定为售后回租,系在不损害第三人合法权益下尊重商事主体的自愿交易安排,还是认为有违公平原则、双方真实意图仅在于融资而进行司法干预,存在争议。而个别案件中,也存在低值高买情形,承租人多以出租人借售后回租为名行借贷之实、超越经营范围为由进行抗辩。
Suggestion: Lessors under the sale-and-leaseback mode should discuss with lessees the extent to which the leased assets can secure the debt owed to the lessors and the scope of the debt that such assets can cover, and agree on a reasonable price of such assets; if necessary, qualified auditors or valuers may be engaged to prevent any dispute arising from the difference between the transfer price of leased assets and their actual value. 建议:售后回租出租人应根据买入租赁物所能够担保其融资债权实现的程度、所能覆盖债权的范围等与承租人协议中对租赁物的转让价格进行合理定价,必要时可引入有资质的审计评估机构,避免因租赁物转让价格与实际价值严重背离而引发争议。
3.  The ownership of the leased assets fails to be transferred to the lessees 3.租赁物所有权未转移至出租人名下
Acquisition of ownership by the lessor is one of the key legal elements for identifying a financial lease transaction. As the leased assets are always possessed and used by the lessees, in assessing whether the ownership of the leased assets has been transferred from the lessees to the lessors, we must have regard to the theory of property rights delivery and the facts about the performance of the contracts. For instance, according to the Property Law of the People's Republic of China, to be effective, the transfer of the ownership of real estate must be registered. Therefore, in a sale-and-leaseback case where the leased asset is real estate, if the lessor enters into the contract knowing that the ownership of the real estate cannot be transferred, the court would hold that parties' true intention is capital lending rather than financial lease. In addition, in some sale-and-leaseback cases, the lessees transferred to the lessors leased assets of which the lessees have no right of disposal. For example, prior to the transfer, the leased assets have been subject to mortgage or other encumbrances, or have been sequestrated or attached. When the lessees argue that such transfer constitutes unauthorized disposal, and if the lessors fail to meet the legal conditions for acquisition of ownership in good faith, the court is unlikely to recognize the transaction as sale and leaseback. 售后回租交易中,出租人取得所有权是识别融资租赁交易的一项重要法律特征。因租赁物始终由承租人占有使用,判断租赁物的所有权是否已由承租人转移至出租人名下,须结合物权交付理论与合同履行事实。比如,在以不动产为租赁物的售后回租案件中,《中华人民共和国物权法》对不动产的所有权移转以登记为生效要件,因此如不动产无法过户且出租人在签订合同时对此明知时,应认定双方之真实意思表示并非融资租赁,而是资金借贷。此外,部分售后回租案件中,承租人向出租人转让的租赁物是不具有处分权的自有物,租赁物在转让前即存在抵押权等权利负担或有查封、扣押,承租人抗辩其属无权处分,如出租人不符合善意取得租赁物所有权法定要件的,也应认定不构成售后回租。
Suggestion: Financial lease companies engaged in sale-and-leaseback business should not only reach an agreement with the lessees on transfer of leased assets, but also make every effort to make sure that the ownership of the leased assets is transferred to the lessor by delivery in the case of personal property, or registration in the case of real estate, so as to mitigate financial lease transaction risks. 建议:售后回租业务中,融资租赁公司除了与承租人达成转让租赁物的合意,还要重视通过动产交付、不动产登记等法律规定的物权交付方式将租赁物所有权转移至出租人名下,以降低融资租赁交易风险,保障融资租赁交易安全。
C.  Issues on repo-type financial lease cases and suggested solutions (三)回购型融资租赁案件的问题及建议
1.  Lessors fail to notify repurchasers in time of the repurchase obligation 1.出租人怠于通知回购人履行回购义务
Under the repo-type financial lease, the manufacturer or seller of the leased assets acts as the vendor, and is obligated to repurchase the leased assets when the lessee fails to pay the rental or otherwise breaches the contract. The lessor and the repurchaser agree that upon satisfaction of the conditions for repurchase (e.g., the lessee delays in rental payment for a certain period of time), the repurchaser shall repurchase the leased assets upon receipt of the notice sent by the lessor. In practice, however, some lessors fail to notify the repurchaser upon satisfaction of the repurchase conditions, but do so upon the expiry of the financial lease contract. As the repurchase price is linked with the time elapsed after the satisfaction of the conditions for repurchase, i.e., the later the lessors send the repurchase notice, the higher the repurchase price will be, the repurchasers will typically challenge the repurchase price alleging that the lessors failed to notify them in time with an intention to increase the repurchase price. On the other hand, the lessors argue that it is their contractual right to notify the repurchasers to perform the obligation of repurchase and that they can exercise such right at any time as long as the lessees have delayed in rental payment for an agreed number of days. 在回购型融资租赁中,租赁物制造商或销售商不仅承担出卖人的角色,而且在承租人未付租金等违约行为发生时,负有回购租赁物的义务。出租人与回购人在合同中约定,回购条件成就时(如承租人逾期未付租金达到一定期限),出租人向回购人发出回购通知后,回购人即应履行回购义务。但实践中出租人并未在回购条件成就时通知回购人履行回购义务,而是在融资租赁合同约定的履行期届满后才向回购人发出回购通知。因合同约定回购价格与回购条件成就的时间长短挂钩,即出租人越晚发出回购通知回购价格就越高,故回购人在审理中对回购价格提出异议,认为出租人怠于通知其履行回购义务,主观上存在提高回购价格的故意。出租人则认为,通知回购人履行回购义务是合同赋予其的权利,只要满足承租人逾期未付租金达到合同约定天数的条件,出租人即可选择任何时间向回购人主张权益,引发争议。
Suggestion: The parties should perform the contract lawfully and properly in accordance with the principle of good faith. The lessors should, in strict compliance with the contracts, notify the repurchasers to perform the repurchase obligation upon the satisfaction of the conditions for repurchase, so as to avoid any decrease in the value of the leased assets and any aggravation of the repurchasers' responsibilities for repurchase. The repurchasers should actively perform the agreed obligations and responsibilities. And upon becoming aware of the satisfaction of the conditions for repurchase, the repurchasers may take the initiative to negotiate with the lessors on repurchase, so as to minimize any possible loss. 建议:合同各方应恪守诚实信用原则,依法适当履行合同。出租人严格遵守合同约定,在回购条件成就时及时通知回购人履行回购义务,避免租赁物价值的减损以及回购人回购责任的扩大。回购人应积极履行合同约定的义务和责任,在发现回购条件成就时,可积极主动与出租人协商回购事宜,及时减损。
2. Delivery of leased assets to the repurchaser becomes impossible 2.回购履行中租赁物无法交付
If the lessee breaches the contract, the lessor may, in accordance with the repurchase contract, initiate a lawsuit to request the repurchaser to perform the obligation of repurchase. It is agreed under the repurchase contract that the lessor shall notify the lessee to deliver the leased asset to the repurchaser, i.e., delivery to the order of the lessor. Thus, if it has become impossible to deliver the leased assets, a dispute arises over the question that whether the repurchaser is still obligated to repurchase such assets. For instance, the lessee may has actually become unable to deliver the leased assets because the same have been attached by a court or are subject to security interests. In some other cases, where the leased assets have been lost, a dispute arises over the question that whether the repurchaser may rely on such facts to defend the lessor's claim for repurchase. Disputes over such issues are essentially different understandings of the nature of a repurchase contract. Lessors typically assert that a repurchase contract is in essence a security contract, and the repurchasers' obligation to pay the repurchase price represents a guarantee liability, which has nothing to do with the question whether the lessees have made delivery to the order of the lessors or whether the leased assets can be delivered. On the other hand, repurchasers argue that repurchase contract is in essence a conditional sale and purchase contract, which implies the existence of the underlying assets as consideration for repurchase price; therefore, they have no obligation to repurchase the leased assets if such assets cannot be delivered. 承租人违约,出租人根据回购合同约定起诉回购人要求其履行回购义务。回购合同约定租赁物由出租人通知承租人交付回购人,属于指示交付。如租赁物已不具备交付的可能性,回购人是否仍须履行回购义务。例如,在审理中发现租赁物已被法院查封,或者租赁物上设有担保物权,因而承租人事实上已无法向回购人交付租赁物。又如,部分案件中租赁物灭失,回购人能否以此对抗出租人的回购请求权。对该问题的争议主要涉及对回购合同性质的理解。出租人主张,基于回购合同的担保性质,回购人履行支付回购款的义务系承担保证责任,与承租人是否依指示交付、租赁物能否交付无关,故回购人应当承担回购责任。回购人则抗辩称,回购实质是附条件的买卖合同,须有标的物作为支付货款对价,因租赁物已无法交付,故回购人无需履行回购义务。
Suggestion: A repurchase contract has the dual nature of guarantee contract and sale and purchase contract. Absence of general consensus over the application of laws, lessors should improve the terms in the repurchase contract, clarify their effects on the lessees, and request for repurchase upon the satisfaction of relevant conditions and fix and keep relevant evidence. On the other hand, repurchasers should raise their risk awareness. When negotiating the repurchase contracts, repurchasers should focus on terms governing the practicability of the delivery of the underlying assets, and clearly define the risks sharing of damage and loss to the underlying assets to be repurchased. 建议:回购合同同时具有担保和买卖合同的双重属性。在存在法律适用争议的情况下,出租人应完善回购合同条款,明确其对承租人的效力,在回购条件成就时及时行使回购请求权,并固定保存相关证据。回购人应提高风险意识,在回购合同的签订过程中,重视涉及标的物取回可行性控制的条款约定,对回购标的物的灭失毁损风险责任承担作出明确约定。
D.  Issues on financial lease of special assets and suggested solutions (四)特殊租赁物融资租赁的问题及建议
1.  Consumables as the underlying assets of financial lease 1.消耗品能否作为融资租赁标的物
Financial lease, being a type of lease, shall have underlying assets that are suitable for lease purpose and can be returned upon expiry of the financial lease contracts. If it is inherently impossible for an underlying asset to be returned after normal use and upon expiry of the contract, such underlying asset will be deemed as unsuitable for financial lease, and the corresponding legal relation will not be recognized as financial lease. In the cases we tried, some financial lease contracts have as their underlying assets “a batch of decoration materials” and others “mudguards”. In a case where a lessor required a lessee in breach to return the leased assets, the court held that the contract in question, though titled financial lease contract, was in fact a loan contract, because the leased assets were consumables and had not been specified. In addition, to circumvent the restrictive provisions on leased assets, certain financial lease companies choose to set up trading companies and enter into the so-called sales contract, under which the seller retains the title to paper, pulp or other consumables and the buyer makes payment in instalments. Most of the defendants of such cases would argue that they had actually entered into a loan contract. 融资租赁法律关系作为租赁法律关系一种,其标的物应当具备适合于租赁的特性,在融资租赁合同期限届满时,具有返还原物的可能性。如按标的物的特性,正常使用情况下,其在期限届满时不可能返还的,则客观上无法作为融资租赁关系的标的物,相应法律关系亦不得被认定为融资租赁关系。在审理中发现,有的融资租赁合同约定租赁物为“装潢材料一批”,有的约定为“水泥挡泥板”等,因该租赁物为消耗品且不明确或未特定化,承租人违约时出租人要求返还租赁物,法院最终判定系争合同名为融资租赁实为借款合同。此外,部分融资租赁公司为了规避有关融资租赁标的物的限定性规定,另行设立贸易公司,并以贸易方式对涉及纸张、原浆等易耗品的标的物从事名为所有权保留的分期付款买卖合同,被告多抗辩该交易实为借款。
Suggestion: Of course, the current financial reform and innovation aims to channel more resources to real economy rather than virtual economy, and sets as one of its goals to expand the financing channels for micro-, small-, and medium-sized enterprises; the lessors in the context of innovation and system reform, however, should in their business development, give heed to the questions that whether the underlying assets of financial lease suit for the purpose of lease and whether their own operations comply with laws and regulations. 建议:虽然拓宽中小微企业融资渠道系当前金融改革创新、“脱虚向实”服务实体经济的目标之一,但在创新和制度改革的同时,出租人在拓展业务过程中,应充分重视融资租赁标的物适于租赁的特性,合法合规经营。
2.  Enforcement of mortgage in financial lease of automobiles 2.机动车融资租赁抵押权的行使
In financial lease of automobile, lessors and lessees enter into financial lease contracts, under which the lessors, at the request of the lessees, purchase automobiles from vendors and lease them to the lessees. To facilitate the use of automobiles, after paying vendors the purchase price, the lessors will register the automobiles under the name of the lessees but agree with the lessees that the lessors are the actual owners. In addition, the lessors and the lessees will enter into separate mortgage contracts, under which the lessees will create a mortgage over the automobiles in favor of the lessors and complete the mortgage registration. Upon breach by the lessee of the financial lease contract, the lessor will bring a lawsuit claiming against the lessee for all the rental unpaid under the contract and the enforcement of the mortgage over the automobiles. There are considerable controversies over the question whether the mortgage can be enforced in such cases. 在机动车融资租赁案件中发现,出租人与承租人签订融资租赁合同,约定出租人按照承租人的要求向销售商购买机动车并将机动车租赁给承租人使用。基于车辆使用便利考虑,出租人向销售商支付车辆转让价款后,将机动车直接登记在承租人名下,但约定实际所有权人为出租人。同时,出租人与承租人签订抵押协议,承租人以抵押人身份将该机动车抵押给出租人并办理了抵押登记。承租人违约后,出租人诉至法院请求承租人支付合同约定的全部未付租金,并同时要求对机动车行使抵押权。对于此种情形下能否行使抵押权,当事人存在较大争议。
Some are of the opinion that registration of leased assets under the name of lessees has been accepted as lawful and valid by Article 9(2) of the Interpretations of the Supreme People's Court on Several Issues Concerning the Trial of Financial Lease Contract Cases, which removed any legal obstacle to such mortgage. As the mortgage has been publicly disclosed through registration, a lessor may lawfully claim for the enforcement of mortgage. Others believe that the purpose of entering into mortgage contracts and registering the mortgage is to publicize the leased assets and prevent disposal of the leased assets by the lessees without the consent of the lessors. As a matter of fact, there is no agreement between them on creating mortgage, and such creation is a false expression of intention. Moreover, the enforcement of mortgage means termination of the contract, but according to relevant judicial interpretations, it is not allowed to claim for at the same time early termination, i.e., payment of all unpaid rental, and enforcement of mortgage. 一种观点认为,《最高人民法院关于审理融资租赁合同纠纷案件若干问题的解释》第九条第二款认可出租人将租赁物登记在承租人名下的登记方式,自物抵押不存在法律上障碍。出租人具有公示登记的抵押权,其主张抵押权具有法律依据。另一种观点认为出租人与承租人签订抵押协议、办理抵押登记的目的在于公示租赁物并防止承租人擅自处置租赁物,双方并无设立抵押担保的合意,属于虚伪意识表示。且行使抵押权意味着解除合同,根据相关司法解释规定,不能主张提前到期即支付全部未付租金同时行使抵押权。
Suggestion: Given the specialty of financial lease disputes, a lessor should devise lawful and reasonable claims in litigation to protect its legal rights and avoid unnecessary litigation risks. 建议:基于融资租赁纠纷的专业性特点,出租人在诉讼中,应依法设计合理的诉讼请求方案,以维护自身合法债权,减少不必要的诉讼风险。
IV. Our Recommendations   四、相关建议
A. Improve laws and regulations on financial lease (一)完善融资租赁法律法规
Chapter 14 of the Contract Law of the People's Republic of China and the Interpretations of the Supreme People's Court on Several Issues in the Trial of Dispute Cases over Financial lease Contracts constitute the current and main legal basis for the trial of financial lease disputes. Against the backdrop of tightened regulation and requirements for returning to the original purpose of lease and serving the real economy, the explosive growth of financial lease sector has slowed down; the business scale of this sector, however, is still growing stably and new trading models continue emerging, and initiatives are still vigorously launched by the government for accelerating the development of the sector. The courts hearing disputes over financial lease contracts are still confronted with quite a few procedural and substantive problems. Given the important role of the financial lease sector in the Chinese market economy, we should, having regards to the status quo of the sector in China, improve the relevant legal system, and particularly, promulgate laws and issue judicial interpretations with respect to those new types of legal relationship in financial lease, so as to balance the interests of the parties concerned, bring the law into full play to regulate, guarantee and guide the development of financial lease market, optimize the industrial structure, and support the innovation and development of the financial lease business. 中华人民共和国合同法》第十四章、《最高人民法院关于审理融资租赁合同纠纷案件若干问题的解释》是目前法院审理融资租赁纠纷案件的主要依据。随着加快融资租赁和金融租赁行业发展的相关措施密集出台,尽管监管趋严以及回归租赁本源、服务实体经济的要求使得融资租赁行业爆发式高速增长态势有所放缓,但融资租赁行业的业务规模仍持续增长,新型融资租赁交易模式亦不断出现,法院在审理融资租赁合同纠纷案件时面临诸多程序和实体难题。鉴于融资租赁行业在我国市场经济中的重要地位,应尽快针对我国目前融资租赁发展现状,完善相关配套法律体系,尤其是针对新类型融资租赁法律关系尽快出台法律、司法解释,衡平保护各方权益,发挥法律对融资租赁市场的规范、保障和引导作用,实现产业结构的优化,为融资租赁业务的创新发展提供有力的支持。
B. Further develop the risk control system (二)加强风险控制体系建设
Financial lease companies shall standardize their business process and establish sound internal risk control system. Specifically, before entering into contracts, they should carefully review the business licenses, tax registration certificates, bank credit and repayment records, financial statements and capital verification reports, so as to understand the lessees' operating conditions and commercial credit standing, and establish a mechanism to rate a lessee's credit standings; when entering into contracts, they should incorporate terms regarding the relation between quality problems of leased assets and rental payment, the available remedies, the liabilities for breach of contract, and the methods of determining the residual value of leased assets, so as to clearly define the rights and obligations of the parties; during the performance of contracts, they should take the initiative to coordinate and participate in inspection or on-site supervision of the delivered leased assets, regularly communicate with lessees and obtain the real-time information on the operating conditions of lessees and the use of leased assets. Lessees should raise their legal and risk prevention awareness, make prudent decision on financing, focus on the contractual protection of their own interests, and may require financial lease companies to explain the relevant terms, if necessary. Repurchasers and guarantors should strengthen risk prediction and enhance information gathering with respect to the operating conditions of lessees, contract performance and status of leased assets. 融资租赁公司应当规范业务流程,建立完善的内部风险控制体系。具体表现为:在缔约前应对能够反映承租人经营状况、商业信用的营业执照、税务登记证、银行信贷还款记录、财务报表、验资报告等材料进行认真审核,建立承租人资信评级机制;在缔约时对租赁物质量问题与支付租金的关系、索赔权利的形式、违约责任、租赁物残值确定方式等条款进行约定,明确各方权利义务;在履约过程中积极协调参与检验或现场监督租赁物交付,并与承租人建立常态化的沟通机制,借助有效资源实时掌握承租人的经营状况以及租赁物使用情况。承租人应提高法律和风险防范意识,在审慎进行融资决策的基础上,重点关注合同对己方权利的保护,必要时可要求融资租赁公司对相关条款进行解释说明。回购人、保证人等加强风险预判,在融资租赁合同履行过程中,加强对承租人经营状况、履约情况、租赁物现状的信息掌握。
C. Establish a sound transaction supporting mechanism (三)建立健全交易配套机制
Most of leased assets are movables, and compared with real estate registration authorities, movables registration authorities are numerous, decentralized and more likely to give rise to transaction risks. Given a lack of centralized ownership registration and disclosure system for movables, we suggest that the financial lease disclosure system of the Credit Reference Center of the People's Bank of China should be improved to protect the rights of financial lease companies to and in their leased assets, reduce the registration and search cost borne by the parties, and provide third parties with access to understand the rights in or to leased assets. In this way, the transaction risks involving leased assets will be mitigated and transaction security will be protected. With respect to the issue that financial lease companies do not have adequate channels for disposal of leased assets, we suggest establishing a fair and efficient mechanism for valuation of leased assets, and developing the secondary lease market, so as to resolve the disputes between the parties over the residual value of leased assets and recycle the leased assets. 租赁物大多数为动产,相对于不动产登记机构而言,动产登记机构多而分散,引发交易风险的可能性相对较高。针对动产缺乏统一的所有权登记公示系统现状,建议完善中国人民银行征信中心融资租赁公示系统,保障融资租赁公司对租赁物的权利,有效降低当事人的登记和查询成本,使得第三人也可通过上述系统知晓租赁物的实际权利状况,降低涉及租赁物的交易风险,保障交易安全。针对融资租赁公司缺乏处理租赁物的处理渠道问题,建议建立公允、高效的租赁物残值评估机制,并培育建立二次租赁市场,从而有效解决融资租赁公司与承租人对租赁物残值的争议以及实现租赁物回收后的再次利用。
D. Strengthen industrial self-discipline and regulation (四)加强行业自律和监管
The financial lease association plays a crucial role in promoting information exchange among enterprises and regulating and coordinating industrial development. As we can learn from those countries with a developed financial lease sector, a financial lease association can bridge the industry and domestic and foreign governments and organizations, and facilitate communications between them. With the first-hand information on and in-depth understanding of the industry, the financial lease association can bring the general demands of enterprises to the attention of government authorities, coordinate as delegated by the government the affairs among the industrial players, and enhance industrial self-discipline and self-motivation. We suggest that the association should be brought into full play in promoting communications among enterprises, strengthening industrial information exchange, reporting industrial demands to the government, unifying industrial rules, regulating industrial operation, and preventing industrial risks, etc. Further to the industrial self-discipline, the regulators should enhance regulation and guidance on new types of financial lease business, maintain the order in the financial lease market, so as to control financial risks while serving and supporting the development of real economy. 融资租赁行业协会对促进企业间信息交流、规范并协调行业发展有着不容忽视的作用。就融资租赁行业发达的国家经验来看,融资租赁行业协会发挥着沟通与联系行业与国内外政府、组织的桥梁和纽带作用。且基于行业协会对行业发展情况的熟悉和了解,其对行业问题具有最直观的认知,能有效向政府部门反映企业的普遍需求,并在政府授权下对行业参与主体之间进行协调,加强行业内部自律以及自我激励。建议充分发挥融资租赁行业协会在促进企业沟通、加强行业内部交流、反映行业要求、统一行业规则、规范行业运作以及防范行业风险等方面的重要作用。在行业自律的基础上,监管部门应进一步加强对融资租赁公司开展新型融资租赁业务方面的规范和指导,维护融资租赁市场秩序,在服务保障实体经济发展的同时有效防范金融风险。
Note 1: Source: Report on the Development of the Chinese Financial Lease Sector 2018 prepared by China Leasing Union, United Leasing R&D Center and Tianjin Binhai Financial Lease Institute. 1数据来源:中国租赁联盟、联合租赁研发中心、天津滨海融资租赁研究院编写的《2018年中国融资租赁业发展报告》。

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