The Problems And Improvement Of The Legal System Of Financial Leasing Supervision Of China

As a form of transaction, financial leasing originated in the U.S. financial systemafter World WarⅡ. With the internationalization of technology and economy, its formand innovation are increasingly numerous and it is highly valued by the world.Financial leasing has created a new mode and concept of financing which freesfinancing from the previous single approach of borrowing and lending with funds orsecurities. By virtue of the two contracts, the three parties, in the form of“financingmaterial properties”financial leasing realizes mutual utilization and combination ofthe industrial capital, financial capital and private capital. But since the early80’swhen financial leasing was introduced into China, it has not been scientifically andreasonably developed. The reasons are as follows: First, the proportion of financialleasing industry in the GDP has been low and the rate of market penetration is onlyone fifth of that in developed countries which fails to meet China’s rapid developingeconomy. Second, the entire industry has suffered several crises. Third, thephenomenon of dual regulators has not been eliminated, and the legal supervisionsystem is still very backward. In accordance with the train of thoughts of “legislation,law enforcement and judicature”, the article generally shows specific measures toimproving the present legal supervision system on financial leasing.This paper has five parts：The first chapter analyzes the special attributes of the legal relationship of financial leasing, emphasizing that such legal relationship goes beyond the contractualrelativity principle of the traditional civil law and the rights and obligations undersuch legal relationship are uneven. Then this Chapter analyses the current problems oflegal supervision on financial leasing in legislation, law enforcement and judiciallevels, and raises its regulatory necessity.The second, third, and fourth chapters expound the external perfectioncountermeasures of legal supervision on financial leasing from the level of legislation,law enforcement, and judicature respectively. As for the legislation, this thesis firstcompares the legislative modes of various countries regarding finance leasing. Thenthis thesis suggests that in consideration of the actual situation of the construction ofrule of law of PRC, the legislative mode of special legislation should be adopted andsupplements the design of the legislative frame with certain systems and contents. Asfor the enforcement of law, suggesting that unitary and moderate regulation will domore benefit to the finance leasing industry of PRC. And this thesis raises the pointthat the current enforcement method focusing on punishment and penalty should betransformed so as to accomplish the administration with soft law. As for theadministration of justice, first and foremost, the judicial trial should be independent.Before the enactment of specialized finance leasing law, the Supreme People’s Courtshould set down comprehensive judicial interpretation to resolve the problems ofidentification of finance leasing companies and registration of finance leasing thathave arisen in real life trials.Finally, the fifth chapter states the internal reform measures of legal supervisionsystem on financial leasing from the financial leasing industry itself. It is necessary toestablish a sound internal control mechanism of finance leasing companies under theguidance of the modern enterprise system and the self-discipline function of industryassociations should be developed.