| Since the financial leasing entered China in the 80 s of last century,it has developed rapidly and has become an important financing way for many small and medium-sized enterprises.But because of the existence of business risks,many financial leasing enterprises will eventually enter bankruptcy proceedings because they can not repay debts.How to deal with the financing leasing contract will directly affect the interests of the lessor and the lessee,as well as the realization of the interests of the creditors.However,as a new form of transaction,financial leasing is significantly different from traditional trading models.In addition,due to the complexity and particularity of the legal relationship between the lessor and the lessee,the current bankruptcy rules of our country can not satisfy the demand of the lessor or the lessee to withdraw from the market.This article first analyzes the definition of financing lease,and introduces two modes of definition of financing lease through the summary of domestic legislation and foreign legislation: formalism and economic materialism,and analyzes the influence of different definitions,the former pays more attention to the formal characteristics of the transaction,while the latter pays more attention to the purpose and function of the transaction.Then through the analysis of several representative theories,it is confirmed that the financing leasing is an independent type of contract.It clears that the origin of the different bankruptcy rules should be applied to the financing lease – the particularity of the ownership of the lease item.Rent in financial leasing is different from that of operating lease,which usually includes all the costs and other fees.The ownership for the lessor is only guarantee for the rent,and the lessor is not concerned about the lease itself at all.Therefore,a financial leasing contract usually arranges that the lessee can directly acquire the lease or to pay at a nominal price to acquire the lease at the end of the lease term,that is,the lessee has substantial economic interests on the lease item.Subsequently,this article expounds the specific rules of bankruptcy law from the two aspects of the lessee and the lessor’s bankruptcy.When the lessee is bankrupt,this article starts from the administrator’s right to choose whether to continue the contract,it analyzes the rules of bankruptcy law applicable to continue the contract and the rescission of the contract.Because the contract law defines the financing lease in the form of formalism,the ownership of the lease belongs to the lessor,but the interests of the lessee in the leased property should be protected.It can be achieved by limiting the lessor’s return to the lease.When the lessee pays the rent to a certain proportion,it may not allow the lessor to retrieve the lease.When the lessor goes bankrupt,it is difficult to continue to fulfill the contract or to dissolve the contract,and it can be solved by third ways of dealing with the contract--the transfer of the financial leasing contract.Finally,we put forward the way to solve the problem of financial leasing bankruptcy from the macro point of view. |
