| Financial leasing, which cannot only circumvent the strict supervision of bank credit and make financing more convenient, but also has the advantage of tax-accounting, and optimizing corporate financial statements, has become a major channels for obtaining credit support to enterprises. Compared to the traditional methods, financial leasing can bring the tripartite parties(the seller, lessor, lessee) a lot of convenience.However, some problems have been outlined in our judicial practice. The problem is the lessor relief system designed to be unfair. When the lessee breaches the contract mildly such as less pays the rent for low percentage, the lessor can claim the court to issue the order of payment which should be done in 15 days according to the Civil Procedure Law. However, when the lessee breaches the contract seriously, there is no better choice for lessor. Thus, the lessor has to endure the lengthy Common Procedure.This paper focuses on finding an efficient and convenient litigation system to protect lessor when exercising the right of recall in existing relief system. And the result is to let the lessor get protection of rapid implementation procedure designed for Real Rights to Security in "People’s Republic of China Civil Procedure Law".The thought of demonstration is, in order to achieve the goal, first, we should reverse the sense towards the "financial leasing" which was considered as one of contract only. We could draw lessons from the Cape Town Convention which 2 assimilates different senses of financial leasing to consider the financial leasing as one kind of security. Second, the paper also studied and compared the relief system serving for the new sense with the similar law system in China. The result is, those two relief systems are basically consistent. Third, the paper then discussed the conception of "real rights for security" in order to demonstrate that the new sense of financial leasing could be accepted in existing law system. Finally, the paper would put forward the method for application of the rapid implementation procedure.Apart from the Introduction and Postscript, there are four chapters.The first chapter makes a basic introduction to "financial leasing". First, it is necessary to introduce the conception of financial leasing in legislation and academic mainstream view. Also emphasized the relationship between the title reservation and the financial leasing, they are basically in the same from the perspective of protecting the lessor. Second, the paper summarized the function of the financial leasing, one is financing and another, which could be easily ignored, is security. The function of security is supported by the factor of title reservation.The second chapter analysis the problems arising from the judicial practice. First, the paper introduces the lessor’s rights when lessee breach the contract, which can be summarized in two kinds: the right to ask for payment and the right to recall the lease item. And considering the demand of transaction practice, it is significant to add a right to claim the court to sell off the lease item. Second, there are two main problems, one is the determination of financial leasing, and another is the unfairness of the relief system for lessor. The former is hard to solve but the latter can be adjusted by existing law which is named rapid implementation procedure designed for Real Rights to Security(hereinafter referred to as the rapid implementation)designed in the reversed People’s Republic of China Civil Procedure Law" in 2012. Then,the paper introduces the rapid implementation system and the expected effect applied to it. Then concluded that the core obstacle to apply the rapid implementation is the existing sense to understand the financial leasing in China.The third chapter introduces the key sense to consider the financial leasing and the law system, mainly the registration system and the relief system, serving for the sense. Then, in order to demonstrate the feasibility to learn from the sense, the paper also discuss the similarity between the Convention and China.The fourth chapter is the analysis and discussion of the specific application. This article provides two methods,subsequently, the paper briefly built right can be applied, the transaction type, and other procedural details of the institutional framework.The Research Methods are Normative analysis and Comparative law analysis. They aim at demonstrating the scientificity of the innovation.The main point and conclusion are: the lessor in financial leasing can get the protection of the rapid implementation procedure for Real Rights for Security. |
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