On The Handling Of The Conflict Between The Ownership And The Mortgage Of The Financial Leasing Property

Financing lease,as a new and flourishing industry in modern China,integrates leasing-assets and finance,involves two contracts and three parties.Among them,leased property is the core,and the rights and obligations of two contracts and three parties are all around it.In judicial practice,the separation of ownership and possession of leased property leads to the conflict of rights of leased property,the most common of which is the conflict between ownership and mortgage of leased property.Although the Contract Law and the judicial interpretation of Financial Leasing Contracts provide some legal basis for solving this problem,they are still insufficient to meet the needs of judicial practice.Therefore,we should improve the relevant system,prevent the conflict of rights beforehand,and adopt remedies afterwards to protect the legitimate rights and interests of the parties after the conflict of rights to the greatest extent.Only by combining them can we ensure the security of financial leasing transactions and promote the rapid development of the financial leasing industry.The author discusses how to resolve the conflicts between ownership and mortgage rights of financial leasing properties through literature research,comparative research,and case analysis.The first part of this paper will analyse the relationship between financial leasing relationship and leased property.First of all,the legal characteristics of the financial lease relationship are extremely important for the derivation and analysis of the problems in this article.Because the legal characteristics of the long-term separation of the leased property ownership and the use right in the financial lease directly lead to the conflict between the leased property ownership and the mortgage right.Secondly,the author uses chart to show the transaction structure of financial leasing,which is helpful to clarify the transaction subject and transaction mode,and to straighten out the legal relationship.Finally,the category and characteristics of theleased property are analyzed.The category of leased property includes movable and real property.China's laws and regulations exclude intangible assets.This article focuses on the handling of conflicts over ownership and mortgage of movable property as a financial lease.The second part analyzes the formation of the conflict between the ownership of the financial lease property and the mortgage,the practical reasons,the institutional reasons,and the plight of the lessor's right relief.Based on the mode of separation of ownership and right to use of the leased property,when the lessee mortgages the financial leased property due to repeated financing,but the financial leased property is not clearly marked,registered and publicized,and the mortgagee or registration authority fails to pay attention to the obligation in the mortgage process,it will inevitably lead to the conflict between ownership and mortgage of the leased property.The reason for the conflict lies in that the registration system of financial leasing has not been established in our country.The current law of our country after the conflict is not perfect on the right relief of the lessor,the legal right to terminate the lessor and the system of taking back the leased property is not perfect,which makes it difficult for the lessor to safeguard the rights.In the third part,through case analysis method,three typical cases are used to elicit the specific manifestations of conflicts in judicial practice,the common handling methods of conflicts by local courts and make specific evaluations.Through case analysis,we can learn from each other's strengths,and provide a feasible practical basis for the conflict handling mechanism proposed below.The fourth part draws lessons from the International Financial Leasing Convention,the United States and Japan's relevant experience.Through the horizontal comparison,it attempts to introduce the financial leasing registration system,the lessor's right relief mechanism,the leasehold recovery system,the lease credit insurance system and other rights conflict preventionand resolution mechanisms.The fifth part proposes a conflict resolution mechanism for the ownership of the leased property and the mortgage,that is,the establishment of a financial lease registration and publicity system,the improvement of the statutory right of the lessor,and the leased property retrieval system.Through the comparison between the current legal provisions and the deficiencies in judicial practice,this paper puts forward suggestions for improvement.In order to prevent the lessee from arbitrarily leasing the leased property,it is necessary to establish a financial lease registration and publicity system to counteract the good will of third parties.We should judge whether the lessee constitutes a fundamental breach of contract,and make a choice between stable transactions and the protection of the rights and interests of the parties.It is not possible to arbitrarily expand the lessor's statutory right to terminate,but also to ensure that when the financial leasing relationship deteriorates,the lessor can quickly terminate the contract to free from it.When the financial lease contract is terminated,the lessor's right to relief is the most important.Therefore,it is necessary to improve the lease property retrieval system to allow the lessor to quickly retrieve the leased property and realise it to avoid further expansion of losses.