Legal Issues in “Internet Financing Leasing”
Internet Financing Leasing is a financial leasing company that uses the Internet as its infrastructure and implementation tool to improve the efficiency of capital turnover and accelerate the effective operation of funds. Speed, realize assets off the balance sheet, and expand new business formats and new models of asset scale.
1. Internet financial leasing business model
(1) P2L (Peer to Leasing) online lending model
P2L It is a variant of P2P (Peer to Peer), which means that individual investors connect with financial leasing companies. It refers to individuals who register as investors on the P2P online lending platform (hereinafter referred to as the P2P platform) and lend funds to them through a lending contract. Private lending and investment activities of professional financial leasing companies. On the online lending platform, the financial leasing company is the borrower, and the investors registered on the P2P platform are the lenders. The financial leasing company uses the loan funds to purchase professional equipment and lease it to the relevant lessee for use during the lease period. The lessee pays the rent and The lessor and financial leasing company will pay part of the rental income to the investor (lender) according to the interest rate agreed in the loan contract. When the lease project ends, the P2L lending contract period also ends.
P2L online loan model diagram
P2L online loan model operation instructions:
1. The financial leasing company and the P2P platform pass an agreement Establish a cooperative relationship and seek loan funds through the platform;
2. The financial leasing company will display the loan information of the leasing project to investors on the platform in the form of a loan bid, including financial leasing project information, loan amount, and interest rate , loan period, guarantee measures (if any), etc.;
3. The P2P platform signs an investor lending fund and borrower borrowing fund custody agreement with a third-party payment company, making it clear to investors that the platform does not have access to investment Investors and borrowers’ funds;
4. Investors bid for the loan bid of the financial leasing company, and after winning the bid, the funds will be remitted to a third-party payment company for custody of the funds;
5. The third-party payment company will issue loan funds to the financial leasing company according to the instructions of the platform;
6. The financial leasing company will remit the income (principal and interest) of the lease project to the third-party payment company in accordance with the instructions of the platform;
7. The third-party payment company will return the income (principal and interest) of the rental project to the investors according to the platform instructions, and this online lending activity ends.
(2) Creditor's rights transfer model
Creditor's rights transfer refers to a contract transfer that does not change the content of the contract. The creditor transfers all or part of its creditor's rights to the third party by entering into a contract with the third party. The third party replaces the original creditor and becomes a new creditor in the original contract relationship. The original contract creditor loses its rights as a contract creditor due to the transfer of the contract.
In the financial leasing creditor's rights transfer model, the financial leasing enterprise generally initiates the project directly on the P2P platform. The platform conducts due diligence on the lease contract, profitability and leased property of the lessee enterprise, and provides the information to the platform. Investor disclosure: After the establishment of the project, the lessee obtains the right to use the leased equipment through a financial lease agreement, the lessee pays rent to the financial leasing company, and the financial leasing company transfers the financial lease claims formed by the rent to the investor, and the lessee regularly pays the leasing company The rent paid by the company is supervised by a third-party agency entrusted by the P2P platform to repay investors. After the rent is paid and the project expires, the lessee obtains ownership of the leased equipment. If the lessee cannot pay the rent when it is due, the financial leasing company will work with the P2P platform to take back the equipment and repay the investor's principal and interest after disposing of it in accordance with the contract. This model is generally used for financial leasing of small general equipment, such as agricultural machinery, small manufacturing equipment, automobiles, etc.
Debt transfer model diagram
Debt transfer mode operation instructions:
1. P2P platform for financial leasing projects (lessee enterprises) Conduct due diligence to determine the feasibility of the financial leasing project;
2. The P2P platform will display the credit transfer information of the financial leasing project to investors, and the investors will determine whether to invest;
3. Financing The leasing company signs a creditor's rights transfer contract with the investor, and the investor becomes a new creditor, and the financial leasing company withdraws from the creditor's rights and debt relationship with the lessee enterprise;
4. The investor delivers investment funds to the third-party payment company;
5. The third-party payment company releases the investment funds to the financial leasing company according to the instructions of the P2P platform, and the financial leasing company obtains the credit transfer funds;
6. The lessee company pays the third party The company pays the rent;
7. The third-party payment company pays investment income (rent paid by the lessee) to investors according to the instructions of the P2P platform.
Additional notes:
1. The P2P platform may require the financial leasing company to provide additional guarantees;
2. The P2P platform will require the financial leasing company to provide investors with The funds and repayment funds of the lessee enterprise shall be handed over to the third-party payment company for custody, and the funds of the financial leasing enterprise and the third-party payment company shall be supervised.
3. When the lessee cannot pay the rent as scheduled, the P2P platform requires the financial leasing company to repurchase the creditor's rights.
(3) Transfer mode of usufruct rights
Property ownership includes four types: possession, use, income and disposal. Usufruct rights are the economic benefits obtained by the owner through the possession, use, operation, and transfer of property. Usufruct rights are a basic right of ownership. In practice, the right to income is often regarded as a power that is separated from ownership. In recent years, there has been a trend of increasingly independent existence. The transfer of the income rights of financial leasing assets means that the financial leasing enterprise transfers the lessee's rental income to the P2P platform investor (transferee) at a certain price. The P2P platform investor pays the corresponding consideration to the financial leasing enterprise and receives the rental income. investment behavior activities.
In the transfer model of the income rights of financial lease assets, the financial leasing company is generally the project initiator. The basic process is: after the financial leasing company signs a financial lease agreement with the lessee, it transfers the income rights of the financial lease assets to (Rent receivables) are transferred to investors through the P2P platform, and the financial leasing company collects rent from the lessee enterprise and repays principal and interest to the investor regularly in accordance with the contract. The financial leasing company earns the difference between the two, and the platform earns commissions. Different from the creditor's rights transfer model, in the transfer of the income rights of financial leasing assets, the due diligence of the lessee company is completed by the financial leasing company. The platform only needs to evaluate the qualifications of the financial leasing company and reference project information, and disclose it to investors online. At the same time, the financial leasing company must be responsible for repaying the project investors through the platform.
Usufruct transfer model diagram
Usufruct transfer model operation instructions:
1. The financial leasing enterprise shall perform due diligence on the lessee enterprise Investigate, sign a financial lease contract and deliver the leased equipment to the lessee;
2. The P2P platform will display the information on the transfer of the income rights of the leased assets on the platform;
3. The investor will follow the platform Based on the income rights transfer information displayed above, it is decided to sign a "income rights transfer contract" with the financial leasing company;
4. The investor delivers the consideration funds of the "income rights transfer contract" to the third-party payment company, that is, the income rights transfer payment ;
5. The third-party payment company releases the proceeds from the transfer of income rights to the financial leasing company;
6. The lessee company delivers the rental income to the third-party payment company;
7. The third-party payment company pays rental income to investors, and investors obtain investment income.
Additional notes:
1. The P2P platform may require the financial leasing company to provide additional guarantees;
2. The P2P platform will require the financial leasing company to provide investors with The consideration funds and the rental income delivered by the lessee company shall be handed over to the third-party payment company for custody, and the funds of the financial leasing company and the third-party payment company shall be supervised;
3. The P2P platform fails to meet the deadline when the lessee cannot fulfill the agreement. When paying rental income, the financial leasing company is required to repurchase the income rights.
II. Legal Issues of Internet Financing Leasing
(1) Legality and Responsibility of the Three Models
1. The P2L online lending model is legal Sex
In the aforementioned pure lending platform model, the P2P platform does not participate in transactions, nor does it assume the responsibility of guaranteeing the repayment of principal and interest, but purely plays the role of an intermediary between borrowers and lenders. Article 424 of my country's Contract Law stipulates that an intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides intermediary services for concluding a contract, and the client pays remuneration. ?Therefore, we believe that the above-mentioned platforms should be legally recognized as intermediaries in intermediary services.
In the pure lending platform model, although the P2P platform facilitates the completion of transactions, the lending relationship is still essentially a legal relationship between individuals or between individuals and enterprises. my country's "General Principles of Civil Law", "General Principles of Loans" and relevant judicial interpretations all protect legitimate private lending relationships, which is the basis for the legitimacy of such P2P platforms.
2. Legality of the creditor's rights transfer model
In the creditor's rights transfer model, the creditor's rights transferee (investor) and the creditor's rights transferor (financial leasing company) directly sign a creditor's rights on the P2P platform For transfer and repurchase contracts, the P2P platform only plays the role of information disclosure and transaction matching, and cannot directly participate in transactions. The transaction funds and payment accounts are jointly supervised by the platform, financial leasing companies and other third parties (banks or third-party payment). Financing The leasing company and platform can obtain a certain amount of commission income; once the lessee cannot pay the rent, the financial leasing company and the platform will take back the equipment and repay the investor's principal and interest after disposing of it in accordance with the contract.
Specifically, there is one main creditor's rights transfer model, which takes the creditor's rights owned by individuals who are highly related to the P2P platform as the transfer target, the Tangning model, represented by CreditEase. As the first lender, Tang Ning, the founder of CreditEase, lends his own personal funds to users who need to borrow money and signs a "Loan Agreement"; then, CreditEase splits Tang Ning's claims in terms of amount and term, and packages them into Fixed-income portfolio products, such as Yixinbao and Yueyitong, are sold to investors, but they are essentially a process of transferring claims. In the process of transferring creditor's rights, Tang Ning acted as a professional investor, and his purpose was not to obtain future interest income and bear certain investment risks; nor did the lender and the borrower correspond one to one.
In the "Internet financial leasing" debt transfer model, people like Tang Ning play the role of professional investors, responsible for purchasing the rental debt of the financial leasing company. The financial leasing company obtains financing, and the professional investors will use the purchased debt to conduct information on the P2P platform. It shows that many investors purchase claims through P2P platforms and become new creditors.
Article 79 of the "Contract Law": A creditor may transfer all or part of its rights in a contract to a third party. If a creditor transfers its rights, it must notify the debtor. Through the above process analysis, the creditor's rights transfer model should be legal in general, as long as the obligation to notify the debtor (lessee) is fulfilled during the transfer process. As for the fulfillment of the obligation to notify the lessee, it is a one-on-one written notice, or It is a newspaper announcement, website announcement, etc., which is not explicitly stipulated in the law, and should be understood as not being bound to any form of notification.
3. Legality of the income rights transfer model
In the creditor's rights transfer model, the financial leasing company's rental claims against the lessee have been transferred, and the financial leasing company has withdrawn from the existing legal In the ranks of relationship entities, the purchaser of the lease claim becomes a new creditor and enjoys the rent claim against the lessee in accordance with the law; while in the transfer of the financial leasing company's income rights, the financial leasing company is still the subject of the legal relationship after the transfer, and its financial leasing transaction subject The status has not been shaken by the transfer of future income rights, and the financial leasing company does not have the obligation to notify the lessee of the transfer of income rights. The lessee continues to have rent payment obligations to the lessor? The financial leasing company, that is, finance lease The usufruct transfer contract between the company and the usufruct purchaser does not involve the third party, the lessee, which is very different from the creditor's rights transfer contract.
Under the transfer model of income rights, there are no legal provisions on the transfer of asset income rights in the existing legal norms, and there are no clear prohibitive provisions in the law, although the relevant asset income rights are independent as a civil right. The existence of sex is still controversial, but we believe that in the civil field, according to the basic principle of "anything can be done without prohibition by law", we should promote market transactions, facilitate the transaction activities of the parties, improve the efficiency of asset utilization and fund use, and optimize Considering asset allocation and other aspects, the current transfer model of asset income rights is generally legal and reasonable.
4. Responsibility of the P2P platform
Although the P2P platform is in an intermediary position in the transaction, its role is only to promote the transaction between the two parties, and the remuneration it receives is only The commission for participating in intermediary activities and whether the transaction can be concluded mainly depends on the willingness of the financier and the investor to conclude the transaction. However, the author believes that the P2P platform may still bear civil liability, administrative liability or even criminal liability under certain circumstances.
(1) Civil liability. Article 425 of the Contract Law: The intermediary shall truthfully report to the client the matters related to the conclusion of the contract. If an intermediary intentionally conceals important facts related to the conclusion of a contract or provides false information and damages the interests of the client, he shall not be required to pay remuneration and shall be liable for damages. ?For intermediary P2P platforms, the principal here is both a financial leasing company and an investor. In terms of who the P2P platform is responsible for, it is mainly responsible for the investors. When a P2P platform fails to perform its due diligence obligations on the financial leasing company's financing projects or makes obvious omissions in the project launch, it should bear civil compensation liability to investors. As for the amount of civil compensation liability, the author believes that it should generally be The platform’s commission income is limited. If it deceives investors together with a financial leasing company and causes serious losses to investors, investors can require the platform to bear losses exceeding the commission income.
(2) Administrative responsibilities. When local financial authorities receive reports from investors or discover during work inspections that P2P platforms engage in fraud, illegal fund-raising, etc. that are not criminally punishable, they may impose administrative penalties on the platforms according to the circumstances.
(3) Criminal liability.
When a P2P platform and a financial leasing company engage in fraud and fictitious financing projects to defraud investors of large amounts of funds or illegally raise large amounts of funds, they shall be charged with the crime of fund-raising fraud according to Articles 192 and 17 of the Criminal Law. Article 16: The crime of illegally absorbing public deposits shall be convicted and punished.
(2) Legality of split transfer and term mismatch in the creditor's rights transfer model
1. Legality of split transfer of creditor's rights. Creditor's rights splitting and transfer means that the financial leasing company will split the lessee's single creditor's rights into multiple claims based on the number of investors so that the number of creditor's rights matches the number of investors. The essence is that the P2P platform transfers the creditor's rights after splitting and reorganizing them. Mass investors on the platform. Article 79 of the Contract Law only provides for the one-to-one transfer of claims, and does not yet involve the many-to-many transfer of claims after the same claim is split. In reality, mainly trust plans, asset securitization and other products involve the splitting and transferring of claims, and the splitting and transferring of claims on P2P platforms is called "asset securitization". The so-called asset securitization is when the financier sells specific assets with stable, predictable, and sustainable cash flow to a special purpose vehicle (SPV). The SPV uses this as the basic asset and through certain operations (such as splitting, Restructure the risks and returns of these assets and enhance the credit of the assets) is the act of issuing securities to unspecified investors, and securities are essentially equal shares of property rights. In the United States, the transfer of claims to multiple investors through a P2P platform after splitting is defined as securities transfer, and the transfer of claims on the Internet is a simple asset securitization. In my country's current "Securities Law", the scope of securities only includes stocks of listed joint-stock companies, corporate bonds or enterprise bonds issued by qualified companies, government bonds and securities investment fund shares, such as equity of limited liability companies, trust plans, Limited partnership shares, split shares of creditor's rights, etc. are not included in the scope of securities. Therefore, there is no issue of the splitting and transferring of creditor's rights into securities issuance as some people say. The splitting and transfer of creditor's rights is legal and is called a class of assets. Securitization rather than asset securitization is appropriate.
2. The legality of the mismatch of creditor’s rights. Creditor's rights term mismatch refers to the behavior of creditors or P2P platforms that artificially break down the creditor's rights into several time periods to match the investor's investment term when the creditor's rights term does not match the investor's investment term. Specific to financial leasing companies, in order to solve the problem of term mismatch, financial leasing companies or P2P platforms first try to select short-term small projects within 1-2 years to go online. Second, financial leasing companies adopt the method of "splitting projects" with P2P platforms. Docking means splitting a long-term project into multiple short-term projects, while the P2P platform sets up a second project after the previous project expires. The mismatch of creditor's rights period is essentially the splitting and transfer of creditor's rights. It is not a securities issuance behavior of public issuance of asset securitization products and does not violate current laws.
(3) Guarantee effect of rent claims under the creditor's rights transfer model
Under the usufruct transfer model, the financial leasing company, as a creditor, does not Without withdrawing from the creditor-debt relationship with the lessee, the financial leasing company still has the right to claim rent from the lessee, and the right to claim the income rights of the leased assets can only be claimed by the investor to the financial leasing company, and the lessee's obligation to pay rent still remains. It is performed to the financial leasing company, so there is no doubt about the validity of the various guarantee contract clauses established by the financial leasing company in the lease contract to ensure the performance of the lessee's rent payment obligations. However, under the creditor's rights transfer model, the effectiveness of these guarantee clauses is worthy of discussion.
The guarantee mechanism for rent claims includes the equipment repurchase guarantee of the leased object seller (supplier), the performance guarantee of the lessee by a third party, the right of recourse against the transferor of the creditor's rights, and, in particular, the Types of guarantees set up to guarantee the rights and interests of the transferee of creditor's rights, etc. Because the repurchase guarantee of the seller (supplier) of the leased property is not a legal guarantee type stipulated in my country's Property Law, it is not discussed in this article.
The guarantee provided by a third party for the lessee's obligation to pay rent is a legal guarantee stipulated in the "Guarantee Law" and can be used as a transfer of rights to the transferee of the creditor's rights. For mortgages provided by third parties, the main problem currently faced is how the mortgage holders handle the mortgage registration for a dispersed majority of investors. In this regard, in practice, a format clause has been designed in which the investor entrusts a third party to hold the mortgage right when transferring the creditor's rights, or entrusts one of the investors to hold the mortgage right; it can also be learned from the current development of credit asset securities in my country In chemical business, the practice of transferring credit assets to a special purpose vehicle (SPV) is as follows: when the obligor cannot perform the obligation when due and needs to implement the terms of the guarantee measures, it will still be held by the credit asset transferor (original equity holder). When the obligation occurs If a person is unable to perform his obligations when due and needs to implement security measures to repay the debt, the secured party will exercise the security right. At this time, the security right will automatically be transferred to the name of the creditor. This is called a rights improvement measure.
As the transferor of the creditor's rights, the financial leasing company's commitment to the transferee of the creditor's rights and the guarantee made by the third party to the transferee are guarantees specially established for the transferee. In the legal relationship The main body has an executable basis. Its establishment method is an announcement commitment made to investors through a web announcement. It can also be legalized by the platform adding corresponding clauses regarding the transfer of subsidiary security interests under the creditor's rights transfer model in the investor registration instructions of the P2P platform. If the investor completes the registration behavior specified on the website, it will be deemed that the requirements for the establishment of a guarantee contract are met, thereby determining the validity of the repurchase commitment or guarantee commitment.
(4) The transfer of ownership of the leased property under the creditor's rights transfer model
Financial leasing is a creative use of the separation of ownership and use rights of the leased property to separate the use rights of the property. It is a financing technology (for the lessee) and business model (for the lessor) that can maximize the economic benefits generated by the use efficiency of the property, thereby helping the users of the property to raise funds. It is the binary separation of ownership and use rights that gave rise to the financial leasing industry, but it also raises questions about whether the ownership of the leased object can be transferred to the new company along with the transfer of rent claims under the P2P platform debt transfer model. The name of the creditor or investor brings difficulties: If the leased property is transferred to the name of the investor with the creditor's rights, it is obviously impossible to divide and transfer the ownership of a leased property to multiple investors because of the existence of many investors. of. If the ownership of the leased property cannot be transferred to the name of the investor along with the creditor's rights, then when the lessee defaults and cannot perform its obligation to pay rent, the investor, as a new creditor, will not have the right to take back the leased property because he is not the owner of the leased property.
There are two ideas to solve this problem: First, when the rental debt is transferred, the ownership of the leased object is transferred together with the name of one of the investors, and the other investors entrust someone to exercise the ownership on their behalf. The rights of the leased object shall be clearly informed to the lessee in the notice of transfer of creditor's rights; secondly, the ownership of the leased object is not transferred together with the rental creditor's rights. The financial leasing company still retains the ownership of the leased object, and the investor gives up the ownership of the leased object (waiving civil rights and does not violate the law), but in the rental credit transfer contract, the investor, as a new creditor, explicitly requires the financial leasing company to take back the leased property as the owner when the lessee fails to perform its rent payment obligations on time. Disposals are made to repay investors' principal and interest.
(5) Illegal fund-raising issues under the transfer of creditor’s rights and usufruct rights transfer model
Financial leasing companies released false financing projects on P2P platforms and raised large amounts of funds, which is a fictitious fact , defrauding the trust of investors, constituting the crime of fund-raising fraud. This crime is relatively easy to grasp, and I will not go into details here. What is difficult to grasp is that under the transfer of creditor's rights and income rights, financial leasing companies may be involved in the crime of illegally absorbing public deposits.
Article 176 of the "Criminal Law": Whoever illegally absorbs public deposits or absorbs public deposits in disguised form and disrupts financial order shall constitute the crime of illegally absorbing public deposits.
In 2010, the Supreme Court promulgated the "Interpretation on Several Issues Concerning the Specific Application in the Trial of Criminal Cases of Illegal Fund Raising", which stipulated four constituent elements for the crime of illegally absorbing public deposits or absorbing public deposits in disguised form: (1) Without the legal approval or borrowing of public deposits by the relevant departments Absorb funds in the form of legal operations; (2) Publicly publicize to the public through media, promotion meetings, flyers, mobile phone text messages, etc.; (3) Commit to repay principal and interest or pay rewards within a certain period of time in the form of currency, physical objects, equity, etc. ; (4) Absorbing funds from the public, that is, unspecified objects in society, and stipulates that four elements must be present to constitute this crime. Article 3 of the "Interpretation" stipulates that anyone who illegally absorbs deposits from the public under any of the following circumstances shall be investigated for criminal responsibility in accordance with the law: (1) If an individual illegally absorbs or absorbs deposits from the public in a disguised form, and the amount exceeds 200,000 yuan, the unit shall illegally absorb Or absorb deposits from the public in disguised form, the amount is more than 1 million yuan; (2) An individual illegally absorbs or absorbs deposits from the public in a disguised form from more than 30 people, and an unit illegally absorbs or absorbs deposits from the public in a disguised form from more than 150 people? Article 3 of the "Interpretation" stipulates: Illegal absorption or disguised absorption of public deposits is mainly used for normal production and business activities. If the absorbed funds can be paid off in a timely manner, criminal punishment can be exempted; if the circumstances are obviously minor, it will not be treated as a crime. .
In practice, in order to avoid this crime, first, the platform does not construct a fund pool. The P2P platform will trust investors’ investment funds to a third-party payment institution, and investors’ funds will go in and out directly into the third-party account. A pure intermediary platform; the second is to specify the registration of public investors through the website, turning public investors into private equity investors; the third is to limit the number of investors in each financial leasing project, with a maximum of 150 people; the fourth is to transform financial leasing into The project is broken down into multiple projects, and one project is financed multiple times (this is also a passive response in the current situation).
(6) Financial leasing companies and their shareholders set up P2P platforms to finance their projects
In practice, there is a trend that more and more large-scale financial leasing companies or their shareholders A P2P platform was established to finance its financial leasing project business. The most typical one is the "ezubao" P2P online lending platform established by Anhui Yucheng Financial Leasing Co., Ltd. Many of the creditor's rights transfer or income rights transfer projects initiated by this platform are themselves leasing projects of Anhui Yucheng Financial Leasing Co., Ltd., which established the P2P platform. This involves how to view related-party transactions and platform self-financing.
The author believes that, as someone said, related transactions are also divided into legal and illegal. Legal related transactions can save a lot of transaction costs in commercial negotiations and improve transaction efficiency. Illegal related transactions harm the interests of the company, minority shareholders or creditors of the company. By transferring financial leasing claims, the ezubao platform achieves a win-win situation for all three parties, including investors, lessees and financial leasing companies, without harming the interests of the company, shareholders or creditors. As an independent legal entity, the P2P platform is relatively independent in terms of operations. As long as it does not harm the interests of any party, it is permitted by law.
The so-called P2P platform self-financing mainly refers to an intermediary platform whose main source of income is to match other people’s business transactions. Network technology companies with P2P online lending as their only business or main business integrate third-party investors’ The funds that should have been used to enter the financing party illegally fell into the platform's own pocket, which not only harmed the interests of the investors, jeopardized the security of the investors' funds, but also harmed the interests of the financiers, causing not all of the investors' funds to enter the financing project. , affecting the project efficiency of the financier and causing the financier's loss of interests. Of course, if a P2P platform like Ezubao raises funds for itself or its shareholders, and eventually runs away or absconds with the money, and constitutes criminal liability, it should still be convicted and punished for the crime of fund-raising fraud or the crime of illegally absorbing public deposits. ;