Q: Recently, the Supreme People's Court issued a judicial interpretation on the application of law to disputes over financial leasing contracts, can you introduce us to the relevant background of the formulation of the judicial interpretation? A: financial leasing in the 1980s was introduced into our country, compared with the trading practice, the legislation on financial leasing is relatively lagging behind. 1996, the supreme people's court issued the "on the trial of disputes over financial leasing contract provisions on a number of issues", in the case of the legislation has not yet been paid for the situation, effectively solve the practical needs. 1999 "contract law" was formulated, the relevant content of the provisions to be When the Contract Law was enacted in 1999, the relevant contents of the provisions were absorbed, and the financial leasing contract was stipulated in Chapter XIV, which became the main legal basis for hearing disputes over financial leasing contract. In recent years, the financial leasing industry in China has shown a sustained and rapid development. Not only the number of newly established financial leasing companies continues to grow rapidly, the total amount of financial leasing business and the number of disputes is also a high-speed growth trend. According to statistics, in 2008, the people's courts accepted 860 cases of first instance financial leasing contracts, 4,591 cases in 2012, and 8,530 cases in 2013. Courts around the world generally reflected that there were more disputes over the composition of the legal relationship of financial leasing, the scope of the leased property, the relationship between the financial leasing contract and the sale and purchase contract, the consequences of contract termination, and the publicity of the leased property. As the provisions of the Contract Law are relatively more principled, the existing legal provisions are not sufficient to meet the needs of judicial practice. at the end of 2009, based on the recommendations of the Financial and Economic Affairs Committee of the National People's Congress (NPC) and the Legal Affairs Committee of the Standing Committee of the NPC, the Supreme People's Court initiated the drafting of the Judicial Interpretation of Financial Leasing Contracts. On the basis of extensive solicitation from courts around the world and the financial leasing industry on the legal issues of disputes over financial leasing contracts, the Supreme People's Court drafted a draft of the judicial interpretation in 2010, and successively convened argumentative hearings of the court system, the financial leasing industry, experts and scholars to repeatedly argue and revise the draft of the judicial interpretation. in March 2013, the Supreme People's Court published the draft of the judicial interpretation through its official website to publicly It also specifically solicited opinions from state organs and departments such as the Finance and Economics Committee of the National People's Congress (NPC), the Legal Affairs Committee of the Standing Committee of the NPC, the China Banking Regulatory Commission (CBRC), the People's Bank of China (PBOC), the Ministry of Commerce (MOFCOM), the General Administration for Industry and Commerce (SAIC), and the Legislative Affairs Office of the State Council (LAO), etc. After synthesizing more than 1,000 opinions from all sectors of the community through online feedback as well as opinions from relevant state organs and departments, we made further revisions and improvements to the draft judicial interpretation. On this basis, the interpretation was discussed at the 1597th meeting of the Trial Committee of the Supreme People's Court on November 25, 2013, and was adopted. This draft interpretation *** five parts and 26 articles, mainly focusing on financial leasing business practice and trial practice reflected in the prominent and more controversial legal issues made provisions, focusing on the identification and validity of the financial leasing contract, the performance of the contract and the publicity of the leased goods, the termination of the contract, the liability for breach of contract, as well as the parties to the litigation, the statute of limitations and other issues.
Q: the judicial interpretation of the formulation of the guiding ideology? A: in the judicial interpretation of the development process, we mainly follow the following guiding ideology: First, to promote the transaction, standardize the development. By reducing the invalidity of the financial leasing contract, strictly limit the conditions for the termination of the financial leasing contract to maintain the normal performance of the financial leasing contract according to the contract. Taking into full consideration of the characteristics of financial leasing contract combining financing and financing, it is prudent to determine the legal relationship of financial leasing contract, guide the financial capital to serve the real economy, and regulate and promote the healthy development of China's financial leasing market. Second, respect the market, encourage agreement. Contract law norms are arbitrary and complementary in nature, this judicial interpretation also more reflects the guiding ideology of the priority of agreement. Businessman is the best judge of their own interests, financial leasing contract is a contract between equal market players, the contract terms of the agreement itself contains the lessor and the lessee on both sides of the performance costs, performance benefits and performance risk judgment. Therefore, in the judicial interpretation, we adhere to the principle of priority of agreement, encourage both parties to market-oriented approach to the performance and termination of the contract, the burden of risk of the leased property, the leased property liquidation and other issues, in order to reduce the litigation risk and the uncertainty of the loss. Thirdly, the rules are refined and easy to operate. The existing Contract Law formally determines the basic framework of the financial leasing contract system in the form of law, but from the perspective of judicial trial, the provisions of some articles are more abstract, and there are differences in the understanding and application of the provisions by courts around the world. For example, the lessor's obligation to assist the claim and its legal liability, the lessor of the leased property defects in the guarantee of the exception, the lessee default lessor's judicial remedies and so on. For these issues, the judicial interpretation of the further clarification and refinement, in order to unify the judicial decision scale, enhance the predictability of the results. Fourth, respect the reality, moderate forward-looking. Financial leasing has been introduced into our country for nearly thirty years, but it is only in the last five years has achieved a faster rate of development. Financial leasing transaction form and transaction practice is still in constant development and change, the relevant regulatory system, the establishment and improvement of the legal system also need a process of accumulation and stabilization. In this context, on the one hand, the judicial interpretation of the industry business practice has been relatively mature practices, industry practices to give the necessary recognition; on the other hand, the judicial interpretation also maintains a moderate degree of openness and foresight, for the practice of financial leasing transactions and the future improvement of the relevant legal system to provide the necessary connection. Fifth, based on the national situation, with reference to the practice. In the drafting process of the judicial interpretation, we adhere to the actual starting point, on the basis of in-depth research on the practice of financial leasing transactions in China, actively listen to the views and suggestions of all parties, and balance the interests of all parties in accordance with the law, and strive to ensure that all the provisions of the judicial interpretation are in line with the practice of financial leasing transactions in China and the stage of development, and give necessary reference to the relevant extraterritorial legislation and international conventions **** provisions.
Q: In the process of the high development of the financial leasing industry, the scope of the leased object and the form of the lease are constantly expanding, which also gives rise to disputes over the nature and validity of some financial leasing contracts. For example, some contracts are recognized as loan contracts, some financial leasing companies carry out business is considered to be shadow banking business, there are many financial leasing transactions take the form of sale and leaseback, there is a mortgage loan contract or financial leasing contract dispute. What is the attitude of the judicial interpretation to this issue? A: Financial leasing is the form of financial transaction most closely connected with the real economy. In support of industrial enterprise equipment renewal, promote the scale of agricultural economy, promote the development of shipping industry and solve the financing difficulties of small and medium-sized enterprises have played an irreplaceable and important role. Objectively speaking, in China's financial leasing industry to obtain high-speed development at the same time, some financial leasing companies engaged in the financial leasing business there are not enough standardized problems, for example, some of the contract is named financial leasing contract, but in fact there is no actual leased goods, from the rights and obligations of the parties to the agreement, there is only the borrowing and lending of funds, but not the leased goods occupation, use. Some although there is a leased object, but the value of the leased object and the composition of the rent is not directly related or the difference is too large, the rent agreed in the contract is not the value of the purchase of the leased object and the lessor's cost of profit, but the lessee to occupy the funds of the interest cost. On the nature of these contracts, there are different views. Article 1 of the judicial interpretation has made clear provisions: the people's court shall, in accordance with the provisions of article 237 of the contract law, combined with the nature of the subject matter, the value, the composition of the rent as well as the contractual rights and obligations of the parties to the financial leasing legal relationship to make a determination. For the situation which is called financial leasing contract but actually does not constitute a financial leasing legal relationship, the people's court shall deal with it according to the legal relationship it actually constitutes. It can be seen that the judicial interpretation strictly adheres to the characteristics of financial leasing transactions combining financing and financing, and does not recognize the "financial leasing contract" with only empty transfer of funds, in order to promote the combination of finance and industry, and to regulate and guide the healthy development of the financial leasing business and industry. As to the issue of sale and leaseback transactions widely existing in the practice of the financial leasing industry, there is indeed a dispute as to whether the nature of the contract belongs to a mortgage contract or a financial leasing contract. Considering that the sale and leaseback transaction is conducive to the revitalization of assets by market entities and the guidance of funds to serve the real economy, the regulations of the relevant supervisory authorities have explicitly recognized the form of this type of transaction and the merger of the lessee and the seller does not violate the provisions of Article 237 of the Contract Law on the constitutive elements of a financial leasing contract, the judicial interpretation of the sale and leaseback contract is recognized for the nature of a financial leasing contract. However, if the lessor and the lessee signed the sale and leaseback contract, but actually there is no leased property, or the leased property is undervalued and overvalued, in the name of financial leasing, the practice of borrowing and lending, the people's court shall still be dealt with in accordance with the actual composition of the borrowing contract relationship.
Q: In practice, based on the special nature of some leases, the relevant government departments have made qualification restrictions on the business license of specific leases. On the financial leasing contract of the lessor that is the leasing company needs to obtain a specific leased goods business license and did not obtain such license signed by the financial leasing contract is valid, there are different understanding. How does the judicial interpretation provide for this? Answer: For specific leased goods, such as medical equipment, because it involves people's life and health safety, the relevant administrative departments to make restrictions on its business license is very necessary. At the same time, we should also see that the financial leasing transaction has its own particularity, that is, the lessor in the financial leasing transaction mainly assume the function of capital financing, the purpose of its purchase of the leased property is to provide the lessee with the use of the leased property, rather than the leased property as a tool for its own production and business activities. Therefore, from the viewpoint of the nature of financial leasing transaction, it is not necessary to require the lessor to have the business license of specific leased goods. From the lessee's point of view, reducing the restriction on the lessor's possession of such business license is also conducive to the lessee obtaining more financial support. For the above reasons, we have made corresponding provisions in the judicial interpretation, that is, according to the provisions of laws and administrative regulations, the lessee of the leased property business use should obtain administrative license, the people's court shall not only on the ground that the lessor did not obtain administrative license to find the financial lease contract is invalid.
Q: financial leasing transactions usually involves the sale and financial leasing two contracts and the lessor, lessee, seller of three subjects, but the contract law financial leasing contract chapter of the financial leasing contract and the sale of contracts and the convergence of the provisions of the contract is not clear. Have the judicial interpretations made corresponding provisions in this regard? A: A typical financial lease transaction includes three parties and two contracts, namely, the financial lease contract between the lessor and the lessee and the sale and purchase contract between the lessor and the seller. However, according to the provisions of the Contract Law, the financial lease contract refers only to the financial lease contract between the lessor and the lessee, and does not include the sale contract between the lessor and the seller, thus giving rise to the question of whether and how the disputes and losses arising from the sale contract in the financial leasing transaction can be remedied through the financial lease contract. The relationship between the validity of the sales contract and the financial lease contract, the relationship between the dissolution of the two contracts, because it involves the two contracts, can not be found in the financial lease contract chapter of the contract law of a clear legal basis, an important issue plaguing the judicial practice. The judicial interpretations have made provisions on this issue from different perspectives. For example, according to the first paragraph of article 5 of the judicial interpretation of the provisions of the lessee refuses to accept the leased goods, the seller violates the contractual obligation to deliver the subject matter to the lessee, the lessee because of the leased goods seriously does not comply with the agreement or the seller fails to deliver the leased goods in the agreed period of time or a reasonable period of time, the lessee or the lessor by the lessee or the lessor, in the expiration of the period of time of the reminder is not delivered, the lessee has the right to refuse to accept the leased goods. The lessee has the right to refuse to take possession of the leased goods. In the financial leasing transaction, the sale contract is concluded for the financial leasing contract, the financial leasing contract is the premise of the conclusion of the sale contract, therefore, the validity, fulfillment and cancellation of the sale contract and the financial leasing contract will certainly affect the other contract. The current contract law financial leasing contract chapter is based on the provisions of the financial leasing contract, financial leasing transactions involving the sale of the contract should be based on the contract law and the sale of the contract chapter and the sale of the contract of the judicial interpretation of the provisions to be resolved, but involves the sale of the contract and the financial leasing contract of the implication of the relationship between the issue, the current law is not clear. Judicial interpretations of this from three aspects to make positive exploration. First, the provisions of the sale contract leads to the financial leasing contract purpose can not be realized, can cancel the financial leasing contract. For example, according to the provisions of Article 11 of the Judicial Interpretation, if the sale contract concluded between the lessor and the seller is dissolved, confirmed to be invalid or revoked, and the sale contract cannot be re-established, or the purpose of the financial lease contract cannot be realized due to the seller, both the lessor and the lessee may terminate the financial lease contract. Secondly, the issue of compensation for losses after the termination of the contract was further clarified. According to the provisions of article 16 of the judicial interpretation, the financial lease contract for the sale contract is canceled, confirmed invalid or revoked, the lessor according to the agreement of the financial leasing contract, or to the financial leasing contract is not agreed or agreement is not clear, but the seller and the leased property by the lessee's choice, claiming that the lessee compensation for the corresponding losses, the people's court shall be supported. The second paragraph of the article also provides that, if the lessor's loss has been compensated when the contract of sale is terminated, recognized as invalid or revoked, the lessee shall be exempted from the corresponding liability. Thirdly, the issue of the lessee's claim against the seller was further clarified. Paragraph 3 of Article 24 of the Judicial Interpretation provides that, where the lessee claims directly from the seller the right to receive the leased goods, claim compensation and other rights under the sale and purchase contract based on the sale and purchase contract and the financial lease contract, the people's court shall notify the lessor to participate in the litigation as a third party. This provision is based on the premise that the lessor of the two contracts and the connection point of the two contracts shall be included in the trial procedure at the same time, and the lessee's right of claim shall be indirectly recognized from the litigation procedure, which is not only in line with the basic jurisprudence of the lessee enjoying the right of claim in the financial leasing contract and the legislative practice, but also effectively solves the problem of the connection of rights and obligations of the sale and purchase contract and the financial leasing contract, and is conducive to a litigation process in Comprehensively solve the problem of assumption of responsibility between the two contracts and the three parties, which not only reduces the burden of litigation, but also is more in line with the essence of the financing function of the lessor in the financial leasing contract.
Q: the financial leasing industry generally reflects that, because the leased property is occupied by the lessee, the lessee often transfers and mortgages the leased property. The current law does not make clear provisions on the registration of the leased property in the financial leasing contract, to the lessor's property rights protection brings greater risks. May I ask whether the judicial interpretation has made provisions on this issue? A: The problem you mentioned does exist objectively. We in the judicial interpretation process, also noted this point. But the leased property registration authority and the effectiveness of registration should be provided by law, and should not be provided by the judicial interpretation. During the lease period, the lessor enjoys the ownership of the leased property, but the leased property is actually occupied and used by the lessee, therefore, the risk of the lessee transferring or mortgaging the leased property to refinance always exists objectively. For leased property such as aircraft, ships and plants with a clear registration authority, since the ownership of the leased property is registered as a form of publicity, the possession and use of the leased property by the lessee does not affect the legal attribution of the ownership of the leased property. However, for a large number of mechanical equipment and other movable property without ownership registration authority, the possession of the ownership of the main means of publicity, in the lessee to transfer the leased property, the transferee can be based on the system of good faith acquisition of the ownership of the leased property, but for the lessor, the rent claims of the right to property protection disappears. Under the premise that the legislation has not made clear provisions on the registration authority of the leased property, in practice, the lessor has to take various measures to protect its ownership of the leased property. For example, some lessors in the leased property in a prominent position to make signs, show the ownership of the leased property belongs to and leased property, some lessors in the leased property has a clear mortgage registration authority under the premise of the authorization of the lessee will be mortgaged to the lessor and in the registration authority for the registration of the mortgage, in order to avoid the risk of the leased property is the lessee of the external transfer, mortgage. However, it is still uncertain whether such acts can produce legal consequences against bona fide third parties. In view of this, the relevant departments have also begun to explore the practice of financial leasing registration inquiry work. Article 9 of the Judicial Interpretation gives a positive response to the protection of the lessor's property right. According to the provisions of this article, the lessee or the actual user of the leased property without the consent of the lessor to transfer the leased property or set up other rights in rem on the leased property, the third party obtains the ownership of the leased property or other rights in rem in accordance with the provisions of Article 106 of the Property Law, and the lessor's claim that the third party's rights in rem is not established, the people's court shall not support, but there are four exceptions: First, the lessor has made a marking in the leased property, and the third party and the lessee are not sure of the right of the third party to the leased property. The people's court shall not support, but there are four exceptions: first, the lessor has made marking in the prominent position of the leased object, and the third party knows or should know that the object is the leased object in the transaction with the lessee; second, the lessor authorizes the lessee to mortgage the leased object to the lessor and register the mortgage in the registry; third, the third party does not make inquiry of the financial leasing transaction in accordance with the requirements of the competent department of the industry or region in the corresponding institution in the transaction with the lessee; fourth, the lessor has the evidence to prove that the third party knows or should know that the object of the transaction is the leased object know that the subject matter of the transaction is the leased object in other circumstances. The provisions of this article from the third party to obtain the ownership of the leased property or other property rights constitute the factual determination of the angle of good faith, the practice of the lessor widely used and in line with the provisions of the current law of the ownership of the ownership of the protection measures to be recognized, will be conducive to strengthening the lessor of the leased property right protection, and guide and promote the healthy development of the financial leasing industry as a whole.
Q: In financial leasing contract disputes, the most common is that the lessee defaults and fails to pay the rent on time. In this regard, the lessor mostly claims to recover the leased property while demanding the lessee to compensate for all the unpaid rent. There is also the view that the lessor can only choose to demand the recovery of the leased property or the lessee to pay all the unpaid rent, but can not be claimed at the same time. How does the judicial interpretation of this issue? A: According to the provisions of Article 248 of the Contract Law, the lessee defaults, the lessor can demand payment of all the rent; can also terminate the contract and take back the leased property. However, whether the lessor can demand full payment of rent and recovery of leased goods, there are different understanding. From the legal point of view, pay all the rent of the lawsuit is actually requesting the continuation of the contract, only requesting the rent to accelerate the expiration of; and take back the leased property of the lawsuit is actually requesting the termination of the contract, so the two requests in essence is contradictory. Therefore, the lessor can only choose to exercise. Judicial interpretation of the first paragraph of article 21 to be clear: the lessor at the same time to put forward the above two claims, the people's court shall inform the choice. The lessor requests the lessee to pay all the rent but failed to realize how to relief, there are different understanding in practice. One view is that the lessor can directly request for enforcement of the leased property, with the proceeds of enforcement of the rent claim. Another view is that, according to the principle of no longer a matter of principle, the lessor can no longer apply for the termination of the contract, to recover the leased property. We believe that, from the legal point of view, the two claims are not the same, so this situation does not constitute a matter of fact. Judicial interpretation of article 21, paragraph 2, to be clear: the lessor appeal for all the rent is not satisfied, the lessor again sued to request the cancellation of the financial leasing contract, the recovery of leased goods, the people's court shall accept. If the lessor chooses to terminate the contract and recover the leased goods, can the lessee be required to compensate for the uncompensated part of the loss? Article 22 of the Judicial Interpretation makes it clear that the lessor can request the lessee to compensate for the loss while recovering the leased property. It should be noted that the value of the leased property and rent there is a corresponding relationship, so the lessor chooses to recover the leased property under the premise of the value of the leased property corresponding to the part of the loss should be deducted from the amount of compensation for damages, so as not to lead to the lessor double compensation and the lessee double compensation unfair.