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

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



(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。
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