| After the financial lease lessee enters bankruptcy proceedings,the financial lease lessor’s property rights to the leased property and claims to the lessee’s remaining rent may be damaged.In this case,the lessors may take a series of measures to protect their legal right.Among them,the lessors’ claim to the bankruptcy right to the lessee’s bankruptcy administrator on the leased property is one of the important ways to effectively safeguard the lessor’s rights.However,there are differences in theories about the nature of the right to obtain the bankruptcy right of the financial lease lessor in China.The law requires low operability and no remedies.In judicial practice,there are some problems in the litigation procedure and the litigants,which affects the system of the right to the financial lease bankruptcy.The implementation of this led to the financial lease lessor not being able to successfully implement the right to recover from bankruptcy.Regarding the nature of the financial lease lessor’s bankruptcy recall right,most theoretical circles recognize that the financial lease lessor’s bankruptcy recall right is an extension of the financial lease lessor’s ability to lease the property.Therefore,to define the financial lease lessor’s bankruptcy recall right,it is necessary to clarify the capabilities of the financial lease lessor on the leased property at first.At present,the theoretical community has two main views on the leaser’s ability to lease property: the "ownership" theory and the "secured property right" theory.The former considers that the financial lease’s right to the lessor is ownership,the latter believes that the "ownership" theory ignores the guarantee nature of the leased property and is disconnected from foreign financial lease laws,affecting the professional development and internationalization of domestic financial lease legislation.It is suggested to break through the theoretical limitation of "statutory property rights" and determine the financial lease lessor’s power over the leased property as a secured property right.Eachof these two perspectives has advantages and disadvantages.However,the financial lease lessor’s power over the leased property is determined as "ownership",and the nature of the financial lease lessor’s right to bankruptcy is based on the right to return the original property on the property,while maintaining the logical unity of the existing legislative system.It is more advantageous to lay the theoretical foundation for the future promulgation of the Financial Leasing Law.Regarding the legislative provisions on the right of a financial lease lessor to recover from bankruptcy.The existing provisions are relatively sparse,and present the characteristics of strong legal principles,low operability,and emphasizing organic law and despising behavioral law.Such characteristics lead to disputes in the practice of financing lease transactions.In addition,in the case of a bona fide third party acquiring ownership of all leased property,etc.,the existing law does not have a remedy against the right to recover from bankruptcy.In order to solve the above-mentioned problems,it is recommended to improve from the two aspects of refining the relevant provisions of bankruptcy right and increasing the relief measures of bankruptcy right.For example,set up some situations in which to bankruptcy recall right can be exercised without the need for a “urging” procedure,in order to flexibly deal with the complex situations that occur during the performance of the financial lease contract.Clarify the exercise period of the lessor’s right to terminate the contract,prompt the right holder to exercise its rights in a timely manner,and ensure the stability of legal relations and commercial behavior.By clarifying the legal status of the right of reimbursement and granting private financial relief to the operating financial leaser,the loopholes in the existing law without the bankruptcy recall right of repossession will be filled.In terms of judicial practice,litigation is the most effective way for a financial lease lessor to claim the right to recover from bankruptcy.However,the current judicial practice does not take into account the special characteristics of financial leases in the establishment of litigation procedures,resulting in imperfect litigation procedures that hinder the trial efficiency of financial lease lessors’ bankruptcy and retrieval rights.The imperfection of the litigation procedure is reflected in the fact that the lease leasing property retrieval cycle and the efficiency of the lessor are long and inefficient under the leasing property ownership lease procedure and litigation mode.At the same time,the following two aspects have increased the difficulty of judicial practice.First,the financial lease lessor confuses the relationship between the rent debt and the right to recover from bankruptcy.Second,the conflict between the option of lessor’s right to relief and bankruptcy administrator contract performance options.In view of the above problems,this article proposes to deal with the difficulties in judicial practice from the following aspects.First,establish a statutory unified financial lease registration platform to solve the difficult situation of determining ownership of leased property.Second,increase the application proportion of arbitration models in dispute resolution,and alleviate the problems of large number of lawsuits,long cycles and low efficiency.Third,increase the judge’s right to explain during the filing stage,and reduce the possibility that the lessor can claim rent claims and bankruptcy rights simultaneously.Fourth,increase consideration factors to support the lessee’s manager in exercising the right to terminate the contract,and avoid rigidly applying the provisions of the bankruptcy administrator’s contract to perform the option and damaging the lessor’s legitimate rights and interests. |
