Conflicts Of Rights Concerning Mortgage On The Lease Item Of Financial Leasing And Its Resolutions

Financial leasing is emerging field and an important part of modern service industry in ourcountry. The lease item takes centre stage in financial leasing. Mortgaging the lease item will causecomplex conflicts of rights. Related regulations in that field are insufficient. Without a soundresolution, those conflicts will restrict the development of financial leasing. That problem haslacked professional study in depth. Studying on these conflicts of rights and its resolutions hasgreat importance to improve the financial leasing system and promote the healthy development offinancial leasing. Conflicts of rights concerning mortgage on the lease item of financial leasing canarise from the mortgage activity of the supplier, the lessor or the lessee. Resolution of thoseconflicts relates to the issues of protection on the lessee or the lessor. Current system can protectthose parties to some extent, whose defect exists as well. Improving relevant systems and makingmortgage on the lease item dormant is to solve the conflicts of rights indeed.Chapter1“conflicts of rights concerning mortgage on the lease item of financial leasing”respectively analyses conflicts of rights caused by different parties. If the supplier sells a pawn,Property Law focus on the protection of mortgage, interest of the lessor or the lessee may bedecreased. Whether the lessor leases a pawn or mortgages a lease item, the mortgage and the leasewill take the same item as object, bringing about conflicts of rights. If the lessee mortgages thelease item, proprietary right of the lessor and priority right of the bona fides third party will conflict.Chapter2“protection on the lessee” discusses the effect how claim system, quiet possessionguarantee system and rule of Property Law for coordinating the lease and the mortgage protect thelessee and gives suggestions to the perfection of those system. To better protect the lessee, as thesubject of the tripartite transaction of financial leasing, the lessee should have a statutory right toclaim against the supplier, the claim system should change to principle of legality fromconventionalism; right minor faults guarantee should be a portion of quiet possession guarantee,restricting the lessor mortgage the lease item to protect the lessee’s right of quietly possessing thelease item; introducing system of suspended delivery and system of the mortgagee’s agreement canleave adequate leeway for protecting the subsequent lessee. Chapter3“protection on the lessor”discusses how to protect the lessor by improving the system of lessor’s lawful rescission of contractand building registration system of financial leasing. The lessor should have the right to choosewithdrawing the lease item or demanding compensation at the time when the lessor removes the contract. Building registration system of financial leasing can solve the problem of informationasymmetry and restrict the lessee mortgage the lease item. Concerning the character of the financialleasing, legislation on registration system of financial leasing should hold registration antagonismin line of the civil doctrine of the autonomy of will and possession or delivery of chattel in PropertyLaw. Chapter4comes to a conclusion that mortgage on the lease item should dormant during thefinancial leasing. Proprietary right of the lessor and economic ownership of the lessee are balanced.Neither the lessor nor the lessee should be benefit from mortgaging the lease item. During thefinancial leasing, mortgage on the lease item should dormant.