On The Judicial Interpretation Of Financial Leasing Contract

The regulation On the Explanation of the Issues of Applicable Law in the Trial on the Disputed Cases over the Contracts for Financial Leasing(here in after referred as to “the Explanation”) took into force on April 1st, 2014. The issue of the Explanation makes up for the lack of legal systems in financial leasing to some extent and there are also many commendable innovations. However, there are still some provisions which are unclear, incomplete or suspected to be unlawful in the Explanation and therefore cause a lot of controversies. Wherein, the most controversial problem is the scope of financial leasing subject. Excluding the legality issue of the case being applicable to bona fide acquisition and the concurrence between the contract termination system of financial leasing and risk burden rules, I attache the focus on illustrating the three controversial problems and proposes my own point of view in this paper in order to provide some reference value for legal practices.This paper is divided into three parts. The first part mainly illustrates the factors that influence the legal relationship recognition of financial leasing. As the subject of financial leasing contracts, it is uncontroversial that general equipment be taken as the leased item, but it is highly controversial in both theory and practice circles that real estate and intellectual property be used as leased items. The author analyzes the legality and rationality of taking housing property, infrastructure and intellectual property as leased items; besides, the author also analyzes the recognition of financial leasing relationship from the perspective of rent composition and the rights and responsibilities between the parties.The second part mainly interprets the exclusion of the case of being applicable to bona fide acquisition. I argue the legitimacy that the lessor authorizes the lessee to mortgage the leased item to himself from the perspective of the theory of mortgage right; what is more, I describe the applicable room of query and registration responsibilities by third party.The third part mainly commends and analyzes the coexistence mode of financial leasing contract termination and risk burden rules. I launch the elaboration from the point of view of the legal basis applicable to risk burden rules, i.e. the consideration for rent payment, and digests the legal effect applicable to financial leasing contract termination and risk burden rules so as to solve the problem of their concurrence through legal explanation from the perspective of hermeneutics.