Its specific content refers to the lessor according to the lessee's specific requirements of the leased object and the choice of the supplier, the capital to the supplier to buy the leased object, and leased to the lessee to use, the lessee pays rent to the lessor in installments, in the lease period of the leased object belongs to the ownership of the lessor, the lessee has the right to use the leased object. At the end of the lease term, after the rent is paid and the lessee performs all the obligations according to the provisions of the financial lease contract, the ownership of the leased object is transferred to the lessee. Although in the financial leasing transaction, the lessor also has the identity of the equipment purchaser, but the purchase of equipment, such as the choice of supplier, the specific requirements of the equipment, the negotiation of the conditions of the purchase contract by the lessee to enjoy and exercise the substance of the lessee is the substantive purchaser of leased objects. Financial leasing is a new type of financial industry integrating financing and financing, trade and technology renewal. Due to the combination of financing and financing, the leasing company can recover and deal with the leased object when there is a problem, and thus the requirements for enterprise creditworthiness and guarantee are not high when dealing with financing, so it is very suitable for SMEs' financing. In addition, financial leasing belongs to off-balance sheet financing, which is not reflected in the liability items of the enterprise's financial statements and does not affect the enterprise's creditworthiness. This is very favorable for SMEs that need multi-channel financing.
An essential difference between financial leasing and traditional leasing is that traditional leasing calculates rent on the basis of the time the lessee leases the object, while financial leasing calculates rent on the basis of the time the lessee occupies the financing cost. Is the market economy to a certain stage of development and the emergence of a more adaptable financing methods, is the 1950s in the United States, a new type of transaction, because it adapts to the requirements of modern economic development, so in the 1960s to 1970s quickly developed around the world, and today has become one of the main means of financing for the renewal of enterprise equipment, known as the "Sunrise industry". China in the early 1980s after the introduction of this way of doing business, more than two decades has also been rapid development, but compared to developed countries, the advantages of leasing is still far from being played out, the market has great potential.
The main characteristics of financial leasing
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The main characteristics of financial leasing are: since the ownership of the leased object is only a form of ownership taken by the lessor in order to control the risk of the lessee's repayment of the rent, and it may be ultimately transferred to the lessee at the end of the contract, the purchase of the leased object is chosen by the lessee, and the maintenance and repair are also carried out by the lessee. The lessee is responsible for the maintenance and repair of the leased object, and the lessor only provides financial services. The principle of rent calculation is that the lessor takes the purchase price of the leased object as the basis, and calculates the rent according to the time the lessee occupies the lessor's funds, and according to the interest rate agreed by both parties. It is essentially dependent on the traditional leasing on the financial transactions, is a special financial instruments.
Types of financial leasing
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1. Simple financial leasing
Simple financial leasing refers to, the lessee chooses the leasing object that needs to be purchased, and the lessor leases the leased object to the lessee through the leasing project risk assessment. The lessee has no ownership but enjoys the right to use the leased object and is responsible for the repair and maintenance of the leased object during the entire leasing period. The lessor is not responsible for the good or bad of the leased object, and the equipment is depreciated on the lessee's side.
2. Leveraged Finance Leasing
Leveraged leasing is similar to the practice of syndicated loans, is a kind of large-scale leasing projects specifically to do with the tax benefits of financial leasing, mainly led by a leasing company as the backbone of the company, for a mega leasing project financing. First of all, set up a leasing company from the main body of the operating institutions - specifically for the project set up a fund management company to provide the project more than 20% of the total amount of funds, the rest of the source of funds is mainly to absorb the banks and the community of idle capital, the use of 100% of the benefits of enjoying the benefits of low taxes, "to two Bo8 The remaining part of the source of funds is mainly to absorb the banks and social idle capital, using the benefit of 100% low tax "two for eight" leverage to obtain huge amount of funds for the leasing project. The rest of the practice is basically the same as financial leasing, except that the complexity of the contract increases due to the wide range of issues involved. Due to the tax benefits, standardized operation, good overall efficiency, safe rental recovery, low cost, generally used for aircraft, ships, communications equipment and large sets of equipment for financial leasing.
3. Entrusted financial leasing
One way is that the person who owns the funds or equipment entrusts the non-banking financial institutions to engage in financial leasing, the first lessor is the principal at the same time, and the second lessor is the trustee at the same time. The lessor accepts the principal's funds or the subject matter of the lease, and according to the principal's written entrustment, handles the financial leasing business to the lessee designated by the principal. The ownership of the subject matter of the lease belongs to the principal during the lease period, and the lessor only receives the handling fee and bears no risk. A major feature of this entrusted leasing is that enterprises without the right to lease business can "borrow the right" to operate. The first step is to make sure that you have the right to use your own personal computer.
The second way is that the lessor entrusts the lessee or a third party to buy the leased goods, the lessor pays the money according to the contract, also known as entrusted purchase of financial leasing.
4. Project Finance Leasing
The lessee is guaranteed by the project's own property and benefits, and the lessor signs a project finance lease contract, the lessor has no recourse to the lessee's property and earnings outside the project, and the rent can only be collected by the project's cash flow and benefits. The seller (i.e., the producer of the leased item) takes this approach to marketing its products and expanding its market share through a leasing company that it holds. Communications equipment, large medical equipment, transportation equipment and even highway operating rights can be used in this way. Others include return leasing, also known as sale-and-leaseback financial leasing; finance-to-lease, also known as sub-financial leasing, and so on.
Risks of financial leasing
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The risks of financial leasing come from many uncertainties, are multifaceted and interrelated, and a full understanding of the characteristics of the various risks in the business activities, in order to comprehensively and scientifically analyze the risks, and formulate the corresponding countermeasures. Financial leasing risk categories are mainly the following:
(1) product market risk. In the market environment, whether it is financial leasing, loans or investment, as long as the funds for additional equipment or technological transformation, the first should consider the market risk of the products produced with the leased equipment, which requires an understanding of the sales of the product, the market share and the ability to occupy the market, the product market development trend, the consumption structure and the consumer's mentality and ability to consume. If these factors are not fully understood, the investigation is not detailed, it is possible to increase the market risk.
(2) financial risk. Because financial leasing has financial attributes, the financial aspects of the risk throughout the business activities. For the lessor, the biggest risk is the lessee's ability to pay back the lease, which directly affects the operation and survival of the leasing company, therefore, the risk of paying back the lease from the beginning of the project, it should be highly concerned.
Currency payments can also be risky, especially international payments, and improper choice of payment method, payment date, time, remittance channel and payment means will increase the risk.
(3) Trade risk. Because financial leasing has trade attributes, trade risks from the ordering negotiations to the trial acceptance are at risk. Due to the commodity trade in recent times the development of a more complete, the community has correspondingly established supporting institutions and preventive measures, such as letters of credit payment, transportation insurance, commodity inspection, commercial arbitration and credit counseling have taken precautions against risk and remedial measures, but due to the different degree of awareness and understanding of the risk of some of the means of commercial nature, coupled with the lack of experience in business management and other factors, these means are not being All adopted, making the trade risk still exists.
(4) technical risk. One of the benefits of financial leasing is the introduction of advanced technology and equipment before other enterprises. In the actual operation process, the advanced technology or not, whether the advanced technology is mature, mature technology is whether the legal infringement of the rights and interests of others and other factors, are important reasons for the generation of technical risk. In serious cases, the equipment can be paralyzed by technical problems. Others include economic environment risk, force majeure and so on.
China's law on the interpretation of financial leasing
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Article 237 of the Contract Law provides that the financial leasing contract is the lessor according to the lessee's choice of the seller and the leased object, to the seller to purchase the leased object, to provide for the use of the lessee, and the lessee pays the rent of the contract law.
The usual practice of financial leasing is that the lessor contributes to the purchase of technical equipment or other materials selected by the lessee, leased to the lessee as a leased object, the lessee obtains the long-term right to use the leased object in accordance with the contract, during the period of the lease, the contractual period of payment of rent, and the expiration of the lease period in accordance with the contractual disposal of leased objects law.
The following three forms of financial leasing contract on the treatment of the leased property:
I. Surrender law. The expiration of the commercial lease contract, the lessee of the lease contract according to the agreed requirements of the lease will be returned to the lessor, the lessor to dispose of the leased property, because the leased property in the lease expiration period have generally reached the use of the period of time, the lessor recovered after it is difficult to re-rent or transfer, so the leased property after the expiration of the period of time, is generally not used in this way law.
Second, the lease renewal method. Business in a reasonable time before the expiration of the lease contract period, the lessee should notify the lessor, the lease on the continued rental of the leased property for negotiation, to determine the renewal of the lease term, rent, etc., in the expiration of the period of the financial leasing contract to sign a renewal of the lease contract law.
Third, the law of retention and purchase. Commercial lessee to pay the nominal price of goods to obtain the ownership of the leased property, the lessee to obtain the ownership of the leased property, fixed asset investment, this method is favorable to the lessor, the lessee, so, after the expiration of the period of the financial leasing contract, the treatment of leased property is generally used in this way law.
Convention on International Financial Leasing
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(Signed at Ottawa, Canada, on May 28, 1988)
The Contracting States to this Convention:
Recognizing the importance of removing certain legal impediments to international financial leasing of equipment, while maintaining a fair balance of interests between the parties to international financial leasing transactions
Conscious of the need to increase the use of international financial leasing;
Conscious of the fact that the rules of law governing traditional leasing contracts have yet to be adapted to the peculiar tripartite relationships arising from financial leasing transactions;
And further conscious of the need to formulate certain uniform rules relating principally to the civil and commercial aspects of international financial leasing;
Hereby agree as follows p> It is hereby agreed as follows:
CHAPTER I. SCOPE OF APPLICATION AND GENERAL PROVISIONS
ARTICLE I
1. This Convention governs the financial leasing transaction referred to in paragraph 2, whereby one party (the lessor):
(1) enters into an agreement (the supply agreement) with a third party (the supplier) on the basis of specifications provided by the other party (the lessee). Under this agreement, the lessor acquires plant, capital goods or other equipment (the Equipment) on terms agreed by the lessee to the extent relevant to its interests, and:
(2) enters into an agreement (the Lease Agreement) with the lessee granting the lessee the right to use the Equipment on condition that the lessee pays rent.
2. The financial leasing transaction referred to in the preceding paragraph means a transaction that includes the following characteristics:
(1) the lessee specifies the equipment and selects the supplier without relying primarily on the lessor's skill and judgment;
(2) the equipment acquired by the lessor is linked to a lease agreement and the supplier knows that such a lease agreement has been or will be entered into between the lessor and lessee; and
(3) the lessor has the right to use the equipment on condition that the lessee pays rent. and
(3) the rent payable under the lease agreement is calculated with particular regard to amortizing all or a substantial portion of the cost of the equipment.
3. This Convention applies whether or not the lessee has obtained or later obtains an option to purchase the equipment or to continue to hold the equipment for a longer period of time for the purpose of leasing, and whether or not a nominal price or rent is paid.
4. This Convention applies to financial leasing transactions relating to any equipment, other than equipment intended primarily for the personal, family or household use of the lessee.
Article 2
In the case of one or more sublease transactions involving the same equipment, this Convention applies to each financial leasing transaction to which it would otherwise apply as if the person supplying the equipment to the first lessor (see the provisions of paragraph 1 of the preceding article) were the supplier and the agreement under which the equipment is acquired were the supply agreement.
Article 3
1. This Convention applies where the lessor and the lessee have their places of business in different States and
(1) if those States and the State in which the supplier has its place of business are Contracting States; or
(2) if the supply agreement and the leasing agreement are governed by the law of a Contracting State.
2. The place of business of the parties referred to in this Convention means, where the parties have more than one place of business, the place of business that has the closest connection with the agreement in question and with its performance, taking into account the circumstances known to or contemplated by the parties at any time prior to, or at the time of, the conclusion of the agreement.
Article 4
1. The application of this Convention shall not be terminated by reason only of the fact that the equipment has become attached to or incorporated in the land.
2. Any question as to whether equipment has become attached to or incorporated in land and the effect on the rights of the lessor and the person having a right in rem in the land if the equipment has become attached to or incorporated in the land shall be determined by the law of the country in which the land is situated.
Article 5
1. The application of this Convention may be excluded only by agreement of the parties to the supply agreement and the lease agreement.
2. Where the application of this Convention is not excluded under the preceding paragraph, the parties may derogate from or vary the effect of any of the provisions of this Convention in their mutual relations, except as provided for in Article 8, paragraph 3, and Article 13, paragraphs 3 (2) and 4.
Article 6
1. In the interpretation of this Convention, regard shall be had to the objectives and purposes set forth in the Preamble, to the international character of the Convention and to the need to promote uniformity in its application and the observance of good faith in international trade.
2. Questions within the scope of this Convention that are not expressly settled in it shall be settled in accordance with the general principles on which it is based or, in the absence of such general principles, in accordance with the applicable law determined by the rules of private international law.
CHAPTER II RIGHTS AND OBLIGATIONS OF THE PARTIES
Article 7
1. (1) The lessor's right in rem in respect of the equipment shall be effective against the lessee's trustee in bankruptcy and creditors, including creditors who have obtained a writ of attachment or execution.
(2) For the purposes of this paragraph, "trustee in bankruptcy" includes a liquidator, administrator or other person appointed to administer the lessee's property for the benefit of creditors generally.
2. If, under applicable law, the lessor's rights in rem in respect of the equipment can only be effective against the person referred to in the preceding paragraph if the requirements of the notice in question are met, those rights can only be effective against that person if those requirements are met.
3. For the purposes of the preceding paragraph, the applicable law shall be the law of the following States at the time when the person referred to in paragraph 1 is entitled to invoke the rules referred to in the preceding paragraph:
(1) in the case of a registered ship, the State in which the ship is registered in the name of the owner (for the purposes of this subparagraph, a bareboat charterer is not to be regarded as an owner);
(2) in the case of a ship registered under the Convention on International Civil Aviation, done at Chicago on December 7, 1944, the State in which the charterer is registered in the name of the owner. (2) in the case of aircraft registered under the Convention on International Civil Aviation, done at Chicago on December 7, 1944, the country of registration thereunder;
(3) in the case of other equipment of a type normally removed from one country to another, including aircraft engines, the country of the lessee's principal place of business;
(4) in the case of any other equipment, the country of the equipment.
4. Paragraph 2 shall be without prejudice to the provisions of any other convention requiring the lessee's right in rem in respect of the equipment to be recognized.
5. This Article shall not affect the priority of any creditor having a lien or security interest in the Equipment, consensual or otherwise, not arising from an attachment or writ of execution, or
(2) any right of arrest, detention or disposal under the applicable law determined by the rules of private international law, in particular in respect of ships or aircraft. right of disposal.
Article VIII
1. (1) Except as otherwise provided in this Convention or in the Lease Agreement, the Lessor shall not be liable to the Lessee for any liability in respect of the Equipment, except to the extent that the Assumption has suffered loss as a result of its reliance on the Lessor's skill and judgment and of the Lessor's intervention in the selection of the supplier or the specification of the Equipment.
(2) Lessor shall not be liable in its capacity as lessor to a third person for death, personal injury or property damage caused by the equipment.
(3) The foregoing provisions of this paragraph shall not apply to any liability of the lessor in any other capacity, such as that of owner.
2. The lessor warrants that the lessee's quiet possession will be free from persons having a superior title or right, or claiming a superior title or right, and acting under the authority of a court of law, if such title, right, or claim does not arise from an act or omission of the lessee.
3. The parties may not derogate from or vary the effect of the preceding paragraph if the preferential title, right or claim arises from an intentional or grossly negligent act or omission of the lessor.
4. The provisions of paragraphs 2 and 3 shall be without prejudice to the lessor's mandatory wider warranty obligation of quiet possession under the applicable law as determined by the rules of private international law.
Article 9
1. The lessee shall take proper care of the equipment, use it in a reasonable manner and keep it in the condition in which it was delivered. However, reasonable wear and tear and changes to the equipment agreed by the parties are excluded.
2. When the lease agreement is terminated, the lessee shall return the equipment to the lessor in the condition specified in the preceding paragraph, unless the lessee exercises the right to purchase the equipment or continues to hold the equipment for the purpose of the lease.
Article 10
1. The supplier's obligations under the supply agreement shall extend to the lessee as if the lessee were a party to the agreement and the equipment were delivered directly to the lessee. However, the supplier shall not be liable to the lessor and the lessee for the same damage.
2. This article shall not entitle the lessee to terminate or withdraw from the supply agreement without the consent of the lessor.
Article 11
The Lessee's rights from the Supply Agreement pursuant to this Convention shall not be affected by the variation of any provision of the Supply Agreement originally agreed to by the Lessee, unless the Lessee has previously agreed to such variation.
Article 12
1. In the event of non-delivery, delay in delivery or non-conformity of the Equipment with the Supply Agreement:
(1) In the case of the Lessor, the Lessee shall have the right to refuse to take delivery of the Equipment or to terminate the Lease Agreement; and
(2) The Lessor shall have the right to cure the default by providing the Equipment conforming to the provisions of the Supply Agreement as if the Lessee had agreed to purchase from the Lessor under the same terms and conditions as in the Supply Agreement. as if the lessee had agreed to purchase the equipment from the lessor on the same terms as the supply agreement.
2. The right under the preceding paragraph shall be exercised and lost in the same manner and under the same circumstances as if the lessee had agreed to purchase the equipment from the lessor on the same terms as the supply agreement.
3. The lessee shall be entitled to retain the rent payable under the lease agreement until the lessor has remedied its default by supplying equipment in conformity with the lease agreement or until the lessee has forfeited its right to reject the equipment.
4. If the lessee has exercised its right to terminate the lease agreement, the lessee shall be entitled to recover any rentals and payments made in advance, less a reasonable amount of the lessee's proceeds from the equipment.
5. The lessee shall have no other claim against the lessor for non-delivery, delay in delivery or delivery of non-conforming equipment unless these are caused by the lessor's acts or omissions.
6. This article shall not affect the rights of the lessee against the supplier under article 10.
Article 13
1. In the event of default by the lessee, the lessor may collect the unpaid rent due as well as interest and damages.
2. If the lessee's default is material, the lessor, subject to the conditions of paragraph 5, may also demand acceleration of the payment of the outstanding rent when the lease agreement so provides, or terminate the lease agreement and, after termination;
(1) recover possession of the equipment; and
(2) collect the amount of rent that would put the lessor in the same position as if the lessee had performed the agreement in accordance with the terms of the lease agreement. (2) Collect damages that would place the lessor in the same position as the lessor would have been in had the lessee performed under the terms of the lease agreement.
3. (1) A lease agreement may state the manner in which damages under paragraph 2 (2) are to be calculated.
(2) Such a provision shall be mandatory as between the parties unless it would result in damages substantially in excess of those provided for in paragraph 2 (2). The parties may not derogate from or vary the effect of this subparagraph.
4. If the lessor has terminated the lease agreement, the lessor shall not be entitled to enforce the provisions of the lease agreement concerning acceleration of the payment of the rent not yet due, but the value of the rent not yet due may be taken into account in calculating the damages in accordance with paragraphs 2 (2) and 3. The parties may not derogate from or vary the effect of the provisions of this paragraph.
5. In the event that a default is remediable, the lessor shall not exercise its right to accelerate the collection of rent or to terminate the lease agreement unless the lessor has notified the lessee that the lessee has been given a reasonable opportunity to remedy the default.
6. If the lessor fails to take all reasonable steps to mitigate its loss, the lessor shall not be entitled to collect damages for such loss.
Article 14
1. The lessor may assign or otherwise dispose of all or part of its rights in the equipment or in the lease agreement. Such assignment does not release the lessor from any obligation under the lease agreement or change the nature of the lease agreement or the lessor's statutory treatment under this Convention.
2. The lessee may assign its right to use the equipment or any other right under the lease agreement only with the consent of the lessor and without prejudice to the interests of third parties.
CHAPTER III FINAL PROVISIONS
ARTICLE XV
1. This Convention was opened for signature at the Closing Conference of the Diplomatic Conference at which the Draft UNIDROIT Convention on International Paid Agents and the Draft Convention on International Financial Leasing were adopted, and will remain open for signature to all States at Ottawa until 31st December, 1990.
2. This Convention is subject to ratification, acceptance or approval by the signatory States.
3. This Convention is open for accession by all non-signatory States from the date it is opened for signature.
4. Ratification, acceptance, approval or accession shall be effected by the deposit with the Depositary of an official document to that effect.
Article 16
1. This Convention shall enter into force on the first day of the month following the expiration of six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.
2. For each State ratifying, accepting, approving or acceding to this Convention after the deposit of the third instrument of ratification, acceptance, approval or accession, this Convention shall enter into force for that State on the first day of the month following the expiration of six months after the date of the deposit by that State of its instrument of ratification, acceptance, approval or accession.
Article 17
This Convention does not prevail over any treaty already concluded or which may be concluded; in particular, it shall not affect any responsibility incumbent upon any person under any treaty already concluded or under any future treaty.
Article 18
1. If a Contracting State has two or more territorial units, each of which is governed by a different enactment in respect of the matters governed by this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that the present Convention applies to all or only to one or more of its territorial units, and may, at any time, substitute another declaration for its declaration. It may at any time make another declaration in lieu of such a declaration.
2. These declarations shall be notified to the depositary and shall specify the territorial units to which this Convention applies.
3. If, by virtue of a declaration made under this Article, this Convention applies to one or more but not all of the territorial units of a Contracting State and a party has its place of business in that Contracting State, that place of business is deemed not to be in a Contracting State for the purposes of this Convention unless it is located in a territorial unit to which this Convention applies.
4. If a Contracting State has not made a declaration under paragraph 1, this Convention applies to all territorial units of that State.