A. Ten Risks of Automobile Financial Leasing Company and Its Countermeasures
Ten Risks of Automobile Financial Leasing Company and Its Countermeasures
Automobile financial leasing refers to the financial leasing company to purchase the corresponding vehicles according to the lessee's choice of leased vehicles and suppliers, and sign the "Vehicle Sales and Purchase Agreement" with the suppliers and lease them to the lessee for use. The vehicle is purchased by the financial leasing company based on the lessee's choice of the leased vehicle and the supplier and leased to the lessee according to the Financial Lease Contract signed between the financial leasing company and the lessee, the lessee pays rent to the financial leasing company in installments, and upon expiration of the leasing period and after the rent has been paid, the lessor transfers the leased vehicle to the lessee unconditionally at a nominal price. The following is the relevant risk points and their countermeasures information, welcome to read and learn.
(A) the risk of encountering the contract
The booming development of automobile financial leasing business as well as the automobile financial leasing company's general awareness of wind control is not strong, which gives some unscrupulous elements or even units desperate to take advantage of the opportunity to take advantage of the special characteristics of the financial leasing business to implement the contract on the automobile financial leasing company.
Countermeasures:
1. Adequate due diligence, analysis and verification of the lessee and the secured property, the guarantor, in addition to the conventional data information, the main concerns should also include: the lessee and the guarantor's work unit and job stability, remuneration, unit positions and social positions, the situation of the family members and their financial resources, and the purchase of the vehicle whether the actual situation of the match with the person, The lessee's and guarantor's credit status, involvement in lawsuits, and administrative penalties.
2, in the relevant contract provisions clearly agreed or issued a separate statement, the car finance leasing company will be the first time in the discovery of the contractual situation to the public security organs, all the materials submitted by the public security organs will be used as evidence, which may not necessarily play a good effect for recidivism, but to a certain extent can play a deterrent role;
3, retain the corresponding due diligence Original information, in the discovery of the contract, as soon as possible to organize the report material and report to the public security organs, in the link of the report, according to practical experience, in addition to preparing exhaustive information, it is best to be able to describe the whole process of the contract to the public security organs through a shorter length or graphic visualization mode to reduce the public security organs of the facts of the determination of the case is not clear to the public security organs and the case will be categorized as a civil and economic and the refusal to file a case of the risk.
(II) Risk of Rental Arrears
The risk of rental arrears is the most common risk in the automobile financing and leasing business, which mainly refers to the lessee's behavior of failing to pay rent to the automobile financing and leasing company on time or in full when it is due.
Countermeasures: In the event of rent arrears, the reasons given by the lessee are often true or false, and the automobile financial leasing company cannot take the reasons described by the lessee as the basis of its subsequent countermeasures, and it is recommended that the automobile financial leasing company take the time of delinquency as the basis for the countermeasures to the behavior of rent arrears to be classified into three categories:
1. Concerned that at this time, the company's business personnel should make a
2, serious concern, the company's legal department or lawyers to draft a letter in the name of the company to the lessee, and informed of the legal consequences;
3, judicial measures, litigation or arbitration.
In addition, in order to avoid further losses, the lessee still owes rent after receiving the letter issued by the automobile financial leasing company, it is recommended that the lessee in the case of security is guaranteed to organize the implementation of self-help, or in the case of the lessee to sign the financial leasing contract with the effect of enforcement and notarization under the premise of applying for compulsory execution.
(C) the security deposit, the risk of liquidated damages identified
financial lease security deposit refers to the money collected by the lessor from the lessee in order to guarantee or ensure that the lessee fully and timely fulfillment of the obligation to pay rent and other payables. The nature and role of the security deposit varies according to the agreement of the parties, therefore, in order to avoid ambiguity and produce, the security deposit terms should be concluded on the role of the security deposit, the amount of money, the payment method, whether or not to accrue interest, preservation and disposal of all aspects of the clear agreement.
Additionally, it should be noted that the security deposit can be deposited with the liquidated damages or deposit***, and the security deposit, liquidated damages or deposit should not be confused in the automobile financing lease contract, so as to avoid failure to protect the lessor's interests comprehensively.
Countermeasures:
1, in the automobile financing lease contract, it should be clearly agreed that the guarantee scope of the security deposit should include vehicle repair costs, tolls, transportation and management fees and vehicle ticket payments, annual inspection, vehicle and ship tax, overdue . Rent, insurance premiums and other payable expenses should be paid by the lessee to a third party, while agreeing that once the deposit is used, party B shall make up the amount of the deposit within the date specified, overdue that is regarded as a fundamental breach of contract by party B;
2, in practice, due to the amount of liquidated damages is subject to the upper limit of the damages caused by the 30% limit, it will be adjusted according to the actual situation, and some times Losses are difficult to determine, so the agreement on the default deposit as well as the deposit is essential.
3, although the liquidated damages and liquidated damages can only choose one and claim, but does not mean that in practice can not agree to liquidated damages and liquidated damages. Therefore, in the default deposit at the same time, but also in areas such as vehicle maintenance, annual inspection with a single agreement on liquidated damages, can choose to apply, and so the agreement is bound to the lessee in the psychological pressure, to a certain extent, is conducive to the protection of the contract for the full performance of the contract.
(IV) Risk of Disposal of Vehicle without Right
Under the direct lease mode, the automobile finance leasing company purchases the vehicle according to the lessee's choice and then registers the vehicle under the name of the automobile finance leasing company, and there is less risk of the vehicle being disposed of without right; however, under the sale-and-leaseback mode as well as even on the basis of the direct lease mode, the vehicle may not be disposed of without right, in consideration of factors such as convenience in operation, tax cost and the issue of assumption of responsibility in the course of the subsequent vehicle use. The liability assumption issue in the process and other factors are considered.
Countermeasures:
1. Avoid registering the vehicle right certificates, such as the motor registration certificate, driving license, motor vehicle invoice, etc., under the name of the lessee;
2. When it is unavoidable, it shall be expressly agreed in the financial leasing contract that the lessee is authorized to pledge the vehicle to the automobile financial leasing company and register the mortgage in the registry authority according to law;
3. marked in a conspicuous position, which is sufficient for the third party to know or should know that the vehicle is a leased vehicle when dealing with the lessee;
4. Prove that the third party does not meet the elements of bona fide acquisition;
5. According to the "Interpretation of the People's Supreme People's Court of the People's Republic of China on the Trial of Issues of the Applicable Laws on Financing Lease Contracts" (hereinafter referred to as "the Judicial Interpretations on Financial Leasing"), Article 9, it is proved that the third party belongs to the obliged subject who is obliged to make inquiries on financial leasing transactions in the corresponding organization in accordance with the provisions of laws, administrative regulations, industries or regional authorities at the time of the transaction.
(E) Risk of Vehicles Being Seized and Detained
Leased vehicles are involved in criminal cases and are detained by the public security authorities as instruments of crime, stolen goods, evidence, etc., or are involved in third-party civil economy, and the leased vehicles are seized and detained as the lessee's property, and the above cases also occur repeatedly.
Countermeasures:
1, the auto finance leasing company should actively strive for the public security organs and the recognition of the ownership of the vehicle, including the submission of a series of supporting materials such as the purchase contract, invoice, financial leasing contract, and the motor vehicle registration certificate;
2, in the financial leasing contract, clearly stipulate that in the above circumstances, the auto finance leasing company has the right to terminate the contract and require the lessee to pay all the remaining rent in advance. the lessee to pay all the remaining rent and liquidated damages in advance, issue a notice of contract termination to the lessee in time, and demand to bear the corresponding responsibilities.
(F) Risk of theft, damage and loss of vehicles
In the auto finance lease, the ownership of the automobile is separated from the right to use, and although the responsibility for the repair, maintenance and safety of the automobile is borne by the lessee, and the risk of theft, damage and loss of the vehicle is borne by the lessee, the ownership belongs to the auto finance leasing company, and the auto finance leasing company has the right to terminate the contract and require the lessee to pay all the remaining rent and default rent in advance and issue a notice of contract default to the lessee in a timely manner and require the lessee to bear the corresponding responsibility. However, the ownership belongs to the automobile financial leasing company, in order to fully protect its own rights and interests and from the perspective of effective cost control, the automobile financial leasing company must pay full attention to the risk of theft, damage and loss of vehicles.
Countermeasures:
1, the lessee is required to purchase insurance, general practice, the first year of vehicle insurance by the automobile finance leasing company charges, instead of the lessee to purchase insurance, the beneficiary is the automobile finance leasing company.
2. The current GPS and GMS anti-theft systems are also powerful enough, and the auto finance leasing company should pay sufficient attention to the installation and maintenance, replacement and other aspects of the installation, and ensure the normal operation of the above anti-theft systems through regular inspections.
(VII) Risks of Traffic Administrative Punishment and Claims by Third Party
The risks of traffic accidents involving leased vehicles are similar to and different from the risks of seizure and detention of vehicles involved in criminal and civil cases. The difference is that if the car financial leasing company in the operation of the financial leasing business on the lessee of the identification of fault, such as the lessee for the natural person when he did not obtain a motor vehicle driving license, and when the lessee for the logistics enterprise, the enterprise did not obtain the qualification of the road transport business license or the qualification has passed the expiry date and other circumstances of the automobile financial leasing company is still carrying out the financial leasing business, the automobile financial leasing company needs to bear a certain responsibility. The automobile financial leasing company needs to bear certain responsibilities.
Countermeasures:
1, in the operation of the financial leasing business, the lessee to do a comprehensive investigation of eligible lessees;
2, in the financial leasing contract, clearly agreed that the lessee meets the use of leased vehicles and carry out the relevant business of the qualification conditions, and committed to the cause of all the losses and claims are borne by the automobile financial leasing company if the liability. If the auto finance leasing company is responsible, it can recover the compensation from it afterwards;
3, actively communicate and coordinate with the traffic law enforcement agencies, and strive for their recognition of the ownership of the vehicle and then make reasonable disposal measures;
4, maintain a good relationship with the traffic police command center or the vehicle management office, and notify the company in time in the event of any violation of all the company's vehicle numbers or matters such as the transfer of the company's vehicle number.
(VIII) Risk of Vehicle Quality Defects
In the automobile financial leasing business, the automobile financial leasing company is based on the lessee's choice of vehicle and supplier and purchases the vehicle for the lessee's use, the automobile financial leasing company only collects the rent, and the supplier delivers the vehicle directly to the lessee and confirms the acceptance by the lessee, and the automobile financial leasing company does not assume any responsibility for the quality of the vehicle unless the evidence proves that it has no quality defects. The automobile financial leasing company does not assume any responsibility for the quality of the vehicle, unless there is evidence that it has interfered with the lessee's selection of the vehicle or the supplier, which is more probable to happen in the process of some manufacturers' automobile financial leasing companies carrying out business.
Countermeasures:
1. In the financial lease contract, it is clearly stipulated that the automobile financial leasing company has not interfered with the lessee's choice of leased goods and suppliers, and that the quality defects of the vehicles have nothing to do with it, and that the lessee shall not use this as an excuse for refusing to fulfill the obligation to pay rent.
2, in practice, some auto finance leasing company to avoid the risk of also for the convenience of operation, will be used in the way of entrusted purchase, entrusted to the lessee to buy the vehicle, according to the principle of entrusted agent, the agent's agency effect ultimately attributed to the agent that is the auto finance leasing company, but the act of purchasing the process is made by the lessee, as a fiduciary party to fully exercise its right to choose and determine the vehicle and the supplier. The lessee, as a trustee, fully exercises its right to choose and determine the vehicles and suppliers, and independently and autonomously selects the vehicles to be purchased from the suppliers according to its own skills. Through the above operation, the automobile financial leasing company can effectively prevent the corresponding responsibility brought about by interfering with the lessee's right of choice.
(IX) Tax Risks of "Camp Reform"
After "Camp Reform", the tax rate of direct leasing mode business in automobile financial leasing is actually increased from 5% to 17%, but the value-added tax of purchasing automobiles can be offset, and the actual tax burden is not significantly increased with the increase of tax rate. The actual tax burden did not increase significantly with the tax rate. However, in the leaseback mode, the lessee is not willing to issue invoices due to the fact that no VAT or business tax is levied on the sale of vehicles by the lessee, and it is even more unlikely that invoices will be issued if the lessee is a natural person, so the auto finance leasing company will not be able to deduct the input tax.
Response measures:
1. Strengthen the financial department's work requirements, the tax policy and the local tax authorities for a full understanding of the operation of the caliber and communication, in addition, the financial department must be in accordance with the provisions of the "106th" after deducting the principal price of the vehicle collected by the lessee as well as external payment of loan interest (including foreign currency borrowing and interest). Interest (including foreign exchange borrowing and RMB borrowing interest), the issuance of bonds interest after the balance of the calculation of sales;
2, direct lease mode requires suppliers to issue positive requirements leaseback mode business lessee (also suppliers) to issue invoices, because according to the provisions of the "106th," although not issued According to Circular 106, although special VAT invoices shall not be issued, ordinary invoices may be issued, which is conducive to determining the amount of the principal price of the vehicle, and the lessee shall be required to issue corresponding receipts even if invoices are not issued.
(J) Risk of a single source of funds
The biggest obstacle for auto financing and leasing companies, especially the domestic pilot companies, to carry out business is the source of funds. Due to the tightening of bank loans and interest rates, automobile financial leasing companies in order to realize the national network layout of institutions and further expand the business market, how to solve the problem of a single source of funds has become a bottleneck that needs to be broken through.
Expanded reading:
The main risk points in the operation process of automobile financial leasing business
I. Legal risk
Legal risk refers to the legal risk in the process of enterprise implementation of financial leasing, due to the failure of the enterprise's external or enterprise's own subjects to exercise the rights and fulfill the obligations in accordance with the provisions of the law or contractual agreements, which will cause negative legal consequences to the enterprise. Possibility.
Legal risks are mainly manifested in the following forms:
1, the financial leasing contract is not well thought out and leads to the financial leasing can not be actually performed or failed to receive the protection due to the law;
2, the financial leasing innovation, leading to the transaction of a party or both sides may be unable to find the corresponding legal protection and suffered losses;
3, and the financial leasing-related crimes and the loss of financial leasing assets make the financial leasing process more difficult. and the loss of financial leasing assets make the risk of financial leasing increase.
Two, moral risk
Moral risk is also known as moral crisis, moral risk is specifically referred to as self-interest to abandon the rights and interests of others without regard to a behavior.
The main reasons for moral hazard:
1. Insufficient knowledge of self-interested behavior and its consequences;
2. Lack of knowledge of the law and its normative nature.
Third, management risk
Because of the leasing company's own operation of the credit risk prediction mechanism, risk transfer mechanism, risk control mechanism is not sound or uncoordinated or unity of the reasons for the company's loss of interests. This kind of risk due to the lack of management within the leasing company, thus causing loss of interest to the company is called management risk.
Control elements of management risk:
1, the enterprise's own risk management is crucial;
2, risk management and business operations throughout the contradiction;
3, the size of the risk is proportional to the risk management system and whether the system is effective;
4, good risk management can produce huge economic benefits
5, high-quality risk management talent team is essential to create good risk income.
Four, market risk
Market risk characteristics:
1, uncertainty persists for a long time;
2, uncertainty factors also affect each other;
3, competition increases the market risk, there is a market there is a risk that the competition itself is one of the driving forces of market risk;
4, the market risk is a rule of thumb of the market risk.
Two, car loan why sign a financial leasing contract
You have to handle the car this is the necessary formalities for the vehicle loan, because you are a mortgage loan to buy a car, then you need to Qian financial leasing contract requirements
Just for the customer to really buy a car loan.
Youxin used car in an interview had said: the company itself, however, in order to meet the demand for abatement, will cooperate with the new network of banks, micro-credit banks, etc., to provide financial leasing services to customers.
A used car industry practitioners said, financing leased car buyers into a renter, the ownership of the car also does not belong to the consumer, only in the rental to obtain. And if the Division has the right to dispose of the vehicle during this period.
Similar to the rent-to-own model is becoming more and more normalized, but the first year of vehicle ownership of the effective conditions. Only after the transfer from the platform to the customer.
This approach is extremely risky. As ownership belongs to the platform, if the car buyer did not pay as agreed, may be, the vehicle will also be recovered or against the line loan, and even be sued to
Any car sales enterprises to charge any nominal fee, must strictly abide by the "Price Law," "Consumer Rights and Interests" and other legal provisions to ensure that the price is clearly marked in advance, the consumer chooses independently, to provide the quality of the price match the real goods or Services, shall not charge fees in violation of the law; shall not mislead consumers under false pretenses; prohibit mandatory or disguised mandatory tied transactions.
Second, when buying a car, we should pay attention to retaining evidence, carefully read the contract:
1, from the beginning of the purchase of the car, pay attention to save the recording, in order to prevent the sales staff from being confused by the excessive promises and so on. Especially the other side of the explanation of the various payments, in order to prevent the loan encountered "set", the lack of evidence.
2, carefully read the terms of the sales contract, see the written contract.
3, such as the other side to provide blank information loan contract, require the contract for the amount of down payment, loan amount, repayment period clearly set out. At the same time, it is best to sign a car purchase contract accompanied by a person who understands the contract, and beware of all kinds of "pits" in the contract
4, ask for the purchase of a car included in the other costs, to grasp the self.
Three, in the melon used car platform to buy a car today in the app to see a finance lease contract...
Support a feeling quite good
four, used car financial leasing contract has risk?
Used car financial leasing contract has the risk
A, financial leasing contract risk points are
1, the risk of default of the parties. In the financial leasing transaction involved in the leasing, lessee and supply of three parties, they all have the possibility of default. If the supplier fails to ship and deliver the goods in accordance with the time and quality standard stipulated in the purchase contract; the lessee refuses to pay the rent or request to return the goods or withdraw the contract due to the supplier's default. The lessee due to poor management, failure and delayed payment, non-payment of rent; lessor due to insufficient funds, failed to pay according to the terms of the purchase contract on schedule caused by the supplier refused or delayed delivery, so that the lessee suffered losses.
2. The risk of interest rate and tax changes.
3, the risk of foreign exchange rate changes in international leasing.
4, the risk of export leasing. In addition to the above risks, there are political, credit and other risks.
Two, the financial leasing contract note
1, the lease
The contract should provide for the name of the leased goods, quantity, specifications, technical performance, inspection methods, as well as the lease term of the leased goods, custody, maintenance, payment of relevant taxes and insurance and other matters.
When choosing the leased object and the seller, the lessor should generally be free to choose by the lessee and rely on the lessee's own skills to determine the leased object, so that the lessor does not bear the responsibility of the leased object does not conform to the agreement or does not conform to the purpose of use. The leased object should be purchased at the lessor's expense. The contract should also stipulate that the lessor has ownership of the leased object and the transfer of ownership of the leased object after the expiration of the lease period, including the conditions of transfer, the consideration, and the time of transfer.
2, rent
The lessor should pay attention to the amount of rent with the lessee and the composition of the rent: generally the cost of the lease plus interest calculated at the rate of the lease, in addition to rent should also be agreed to pay the deadline, mode and currency. If the parties did not agree on the rent, it should be generally based on the purchase of most or all of the cost of the leased property and the lessor's reasonable profit.
3, the term of the lease
generally in months, and should specify the starting date.
4. Guarantee of the contract
In order to ensure that the lessee pays the rent according to the agreement and fulfills the contract, the lessor should generally require the lessee to provide appropriate guarantees, including third-party guarantees, mortgages or pledges of its own assets, etc. The lessor should review the guarantee contract against the guarantee contract to ensure that the lessee pays the rent according to the agreement and fulfills the contract. The lessor shall examine the qualification of the guarantor, the content and effectiveness of the guarantee contract, and shall register in accordance with the relevant provisions so as to make the guarantee of the contract effective.
5, the termination of the contract
The termination conditions should generally include the lessee does not pay rent on time, the disappearance of the lessee's qualification, the lessee has obviously lost the ability to pay rent and so on.
6, the contract dispute resolution
The parties to the contract may agree to choose the arbitration institution or the dispute with the actual contact with the location of the contract dispute. If the parties have no agreement on jurisdiction, shall be the defendant's location or the use of the leased property jurisdiction.
7, other costs
The lessor, if the lessee charges other costs, such as fees, legal fees, etc., there should be other agreements clearly agreed, and can not be directly deducted from the purchase price of the leased property. The lessor shall deliver the full amount of the purchase price of the leased property, otherwise it constitutes a breach of contract. In view of the above professional legal issues in the financial leasing contract, in order to avoid unnecessary disputes caused by imperfect contract terms, as the lessor, the financial institution is best to ask a professional law firm to assist in the formulation.