On The Clarification Of The Legal Nature Of Sale And Leaseback

Sale and leaseback is a special transaction mode originating from finance lease.In the process of continuous development,the situation in sale and leaseback transaction practice becomes more and more complicated,leading to its gradual departure from the essential characteristics of finance lease and forming a distinct and independent feature of sale and leaseback itself.Due to the lack of relevant provisions on sale and leaseback in current laws,which are limited to the financial leasing system and ignore the particularity of its legal nature,the legal nature of sale and leaseback has been constantly disputed in academic circles,which also affects the handling of related issues in practice.The legal definition of sale and leaseback is unclear.As a matter of fact,it may not only prejudice the lawful rights and interests of the parties concerned,disrupt market economic order and other negative impacts,but also may bring about problems in the application of law in judicial practice,thus affecting the resolution of disputes.There are two major viewpoints in the academic circle about the legal characterization of sale and leaseback,the theory of finance lease and the theory of assignment guarantee.The former does not realize that sale and leaseback and finance lease have a fundamental difference in the purpose of transaction due to the different sources of the leased property;the latter Focusing only on sale-leaseback and assignment guarantees,both adopt the method of guaranteeing the realization of creditor’s rights by selling their own property,while ignoring the significance of leasing in sale-and-leaseback.The aforementioned viewpoints only see the similarities between sale and leaseback,financial lease and assignment guarantee,but ignore its unique legal nature,so the legal characterization of sale and leaseback is not accurate enough.The sale and leaseback has a transaction structure in which both the sale and the lease coexist between the two parties.It reflects the transaction purpose of using the fixed assets to obtain financing under the premise of maintaining possession and use.It is an independent legal relationship.Furthermore,by comparing with the existing atypical guarantee contracts,the performance of the guarantee function in the sale and leaseback can be clarified,so that it can be included in the adjustment scope of the atypical guarantee system and its independent legal status can be clarified.In theory,clarifying the legal nature of sale and leaseback will help improve the relevant legal system,and clarifying the legal nature of sale and leaseback requires corresponding provisions in legislation.In order to clarify the legal nature of sale and leaseback at the institutional level,it is necessary to clarify the legal nature of sale and leaseback in legislation,and at the same time clarify its independent legal status in the atypical guarantee system.The relevant legal provisions on financial leasing,assignment guarantee,etc.clarify the difference between them and sale and leaseback,so as to realize the connection between sale and leaseback as an independent legal relationship and other similar legal relationships in legislation.Since the sale and leaseback is an atypical guarantee,in order to improve the security property publicity system,it is necessary to make clear provisions for the sale and leaseback in the unified registration system and the unified settlement order.Due to the negative impact on the financial leasing industry due to the unclear legal characterization of the sale and leaseback,we should also start from the supervision of the financial leasing industry,change the supervisory thinking,and strengthen the supervision.When the legal characterization of sale and leaseback is involved in judicial practice,the transaction structure of sale and lease coexisting between two parties should be based on sale and leaseback,and the transaction purpose of using fixed assets to obtain financing under the premise of maintaining possession and use,and at the same time.Pay attention to the distinction between it and the financial lease relationship and the assignment and guarantee relationship,and judge the sale and leaseback as an independent legal relationship.If the dispute also involves the guarantee function in the sale and leaseback,it should be tried in conjunction with the relevant provisions in the atypical guarantee,such as the unified registration system and the unified repayment order in the security property publicity system.