Research On Mortgage Of Leasor In Financial Leasing

It is the application of mortgage of owner in financial leasing which is the main proj ect of the research,and it is regulated in<Interpretation of the Supreme People's Court on Issues concerning the Application of Law in the Trial of Cases Involving Disputes over Financial Leasing Contracts>Article9-1-2.Under the circumstance of unperfected registration system and relevant regulations,the method of that lessor authorizes lessee to mortgage the leasehold to the lessor himself and register it as legally required in financial leasing,which functions as a way to deny the third party's good faith when real rights are obtained in good faith,which does protect the ownership of lessor.However,it increases many problems in legal practice.On the one hand,the special registration which combines owner of the leasehold and mortgagor contravenes basic theory of property law.When it is adopted by courts,it is neither understood accurately by judges nor lack of concrete regulations.According to the cases,on the hand,judges have a different understanding about the meaning and effect of this method,especially the effect of registration of the mortgage of lessor,such as the effect of presumption of rights and public trust.For example,some courts think that the mortgage of lessor doesn't have the effect of presumption of rights when it comes to the condition of other notifications of rea rights,and some courts thinks that the mortgage of lessor has the effect of presumption but no public trust.On the other hand,based on the purpose of law,the method of that lessor authorizes lessee to mortgage the leasehold to the lessor himself and accomplish registration is one of the methods of ownership notification,but at the mean time it leads to the contradiction of multiple notification of real rights of leasehold:registration of financial leasing,registration of mortgage,registration of ownership and occupation.The un-clearance of the effective order between these four notifications lead to the different judgement.As a result,in order to solve the problems,the research re-decode the effect and function of registration of mortgage of lessor basing on amylase of mortgage of moveable property and the comparison of these two.Not only is justified theoretical basis,but it aims to clarify the unique function of registration of mortgage of lessor.In the end,problems mentioned above are to be solved under the re-decode of effect and function,which are concentrated in the presumption and public trust and effective order of multiple notification of real rights.