Article 745
The lessor's ownership of the leased property shall not be used against a bona fide third party without registration.
I. Purpose of this Article
This article deals with the counter-effect of registration of the lessor's ownership of the leased property.
II. Evolution of the Provisions
This article is amended by the Civil Code on the basis of Article 242 of the original Contract Law. Article 242 of the original Contract Law stipulates that "the lessor shall enjoy the ownership of the leased thing. If the lessee goes bankrupt, the leased property does not belong to the bankruptcy estate. "The reason for this change in the lessor's provisions on the ownership of the leased property is that one of the objectives that the Civil Code as a whole is expected to achieve is the elimination of implicit guarantees. On the surface, a financial lease contract is a contract related to lease, but in fact it assumes the function of guarantee. According to the foregoing provisions of the original Contract Law, although the lessor enjoys nominal ownership of the leased property, this nominal ownership has the effect of real ownership, so that the lessor can exercise the right of recovery when the lessee goes bankrupt. Based on the overall goal of optimizing the business environment and eliminating implicit guarantees, in the process of compiling the Civil Code, it is stipulated that the lessor's ownership of the leased property shall not be used against a bona fide third party without registration, and it is clarified that registration must be obtained in order to be effective against a third party. In addition to the realization of the above-mentioned general objectives, since the Civil Code has established that the ownership of the lessor in a financial lease essentially plays the role of a guarantee, and is in fact one of the specific forms of security, the adverse effect of the lessor of the financial lease on the leased object should be determined by applying the provisions of Article 414 of the Civil Code.
3. Interpretation of Provisions
This article is a provision on the ownership of leased objects in financial lease contracts.
The ownership of the leased object in the financial lease contract shall be vested in the lessor. This is because the financial lease contract is, after all, a lease contract, and the ownership of the leased thing only belongs to the lessor, and the lessee can occupy, use and benefit from the subject matter that he does not have ownership in accordance with the lease contract. If the leased property is owned by the lessee, it loses the meaning of the lease contract and cannot become a financial lease contract.
Most of the leased objects of financial leasing are large-scale machinery and equipment, etc., which are quasi-immovable properties and need to be registered in accordance with the provisions of laws or administrative regulations. If the lessor fails to register the leased property in accordance with the regulations, it shall not confront a bona fide third party. In this regard, the lessor should fulfill the owner's duty of care, because although the leased property belongs to itself, the possession, use, and income rights are out of its own hands and in the hands of the lessee, so it should fulfill its registration obligation to avoid accidents and losses to others.
4. Cases
Anhui Xincheng Financial Leasing Co., Ltd. v. Leshan Shawan Zhongsheng Ceramics Co., Ltd. and Leshan Commercial Bank Co., Ltd. Shawan Branch Financial Leasing Contract Dispute
Facts: On February 10, 2012, Anhui Xincheng Financial Leasing Co., Ltd. (hereinafter referred to as Anhui Xincheng Company), Leshan Shawan Zhongsheng Ceramics Co., Ltd. (hereinafter referred to as Shawan Zhongsheng Company) and Guangdong Keda Electromechanical Co., Ltd. (hereinafter referred to as Guangdong Keda Company) signed five purchase and sale contracts, stipulating that Guangdong Keda Company would supply Shawan Zhongsheng Company with five automatic hydraulic presses KD3800C for porcelain tiles, a porcelain tile automatic polishing production line, and a set of engineering equipment. At the request of Shawan Zhongsheng Company's financing funds, the above-mentioned equipment was purchased by Anhui Xincheng Company from Guangdong Keda Company, and then leased to Shawan Zhongsheng Company in the form of financial leasing. On July 11, 2012, Anhui Xincheng Company made an initial registration of the leasing equipment in the financial leasing system of the Credit Information Center of the People's Bank of China, and marked the equipment in a prominent position: "This machine is financial leasing equipment, and the owner is: Anhui Xincheng Financial Leasing Co., Ltd." "The court ruled that, in this case, firstly, the plaintiff Anhui Xincheng Company had made a mark in a conspicuous position on the leased equipment, indicating that the equipment belonged to the financial lease and belonged to the plaintiff; secondly, when the Shawan Branch of the Commercial Bank signed the mortgage contract with the defendant Shawan Zhongsheng Company, it did not log in to the financial leasing registration and publicity system to inquire about the financial leasing transaction in accordance with the regulations of the banking industry; thirdly, the Shawan Branch of the Defendant Commercial Bank did not require the defendant Shawan Zhongsheng Company to provide the original VAT invoice of the mortgaged equipment to confirm that the mortgaged equipment was indeed owned by the defendant Shawan Zhongsheng Company。 In view of the above circumstances, the defendant commercial bank Shawan Sub-branch submitted that it had fulfilled its obligation to review when signing the mortgage contract with the defendant Shawan Zhongsheng Company, and there was reason to believe that the equipment involved in the case belonged to the defendant Shawan Zhongsheng Company and belonged to a bona fide third party's defense was inconsistent with the facts ascertained by the court, and the defendant commercial bank Shawan Sub-branch should have known that the "engineering set" equipment of the collateral belonged to the financial lease property and belonged to the plaintiff, and it did not belong to a bona fide third party, so its defense was not accepted. The Shawan Branch of the defendant commercial bank could not enjoy the mortgage right in the above-mentioned financial leased property.
5. Analysis
In the financial lease contract, if the lessor has effectively marked the leased property in a conspicuous position and has initially registered the financial leased property in accordance with the relevant provisions of the People's Bank of China, the lessee's act of mortgaging the leased property to a third party without the consent of the lessor shall be deemed invalid according to law, and the third party cannot defend itself against a bona fide third party, and the lessor's claim for the lessee and the third party to cancel the mortgage registration is in accordance with the provisions of Article 745 of the Civil Code and should be supported. In this case, Anhui Xincheng Company had registered the underlying equipment and could fight against the Shawan Branch.