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Financial lease ship lessor
A typical case of KNOW ships
Case IntroductionCase AnalysisRelated Extensions
Case Introduction
Company A needs to order a ship from Shipyard C, but does not have sufficient funds, and Company B is a financial leasing company. Company B signed a shipbuilding contract with Shipyard C, ordered a ship according to the requirements of Company A, and paid the shipbuilding money on schedule; At the same time, Company B signed a financial lease contract with Company A, stipulating that the ship would be delivered to Company A for use after completion, and Company A would pay the rent as agreed in the financial lease contract, and the ship would be repurchased by Company A for 1 yuan after the expiration of the financial lease term. Companies A and B consulted with the ship registration authority that, according to the relevant provisions of the Civil Code, the ship financial lease contract has atypical security attributes, so whether the charterer, Company A, can be registered as the owner of the ship, and Company A and Company B sign the ship mortgage contract and register the lessor Company B as the mortgagee.
01Case Study
This case involves the registration of financial leasing vessels, and also involves the discussion brought about by the current hot Civil Code after the recognition of financial leasing contracts as "other contracts with security functions" (atypical guarantee contracts). We analyze the concept and types of financial lease contracts, the ownership of financial lease ships and their atypical security attributes, and the registration practices of civil aircraft financial leases.
1. The concept and characteristics of financial leasing contracts
According to Article 735 of the Civil Code, "a financial lease contract is a contract in which the lessor purchases the leased object from the seller according to the lessee's choice of the seller and the leased object, provides it to the lessee for use, and the lessee pays the rent." ”
Generally speaking, a financial lease is composed of three parties (the lessor, the lessee and the seller), and is usually composed of two or more contracts (financial lease contract and sales contract), the content of which is financing, and the form of expression is financing.
In practice, there are two main forms of ship financial leasing: direct leasing and sale-leaseback.
Direct chartering: The ship lessor orders the ship from the designated ship builder or purchases the designated ship from a third party in accordance with the requirements of the charterer, and delivers it to the charterer for use, and the charterer pays the rent. The ship lessor and the ship builder sign the Ship Construction Contract or the ship seller sign the Ship Sales Contract, and the ship lessor and the ship lessee sign the Ship Financial Lease Contract. This case is a typical direct lease.
Sale and leaseback: The ship lessor purchases the ship of the ship lessee, and then leases it back to the lessee for use, and the lessee pays the rent. It involves the signing of the Ship Sale and Purchase Contract and the Ship Financial Lease Contract between the ship lessor and the ship lessee.
2. Analysis of the ownership of financial leasing ships and their atypical security attributes
1. Ownership of financial leasing vessels
Article 745 of the Civil Code stipulates that: "The lessor's ownership of the leased property shall not be used against a bona fide third party without registration. Therefore, under the ship financial lease contract, the ownership of the ship belongs to the ship lessor, that is, the financial leasing company, and there should be no dispute. Moreover, this ownership cannot be used against a bona fide third party without registration.
In practice, if a financial leasing ship lessor applies to the ship registration authority for ownership registration, the ship registration authority will issue a Ship Ownership Registration Certificate and remark "financial leasing vessel" in the certificate to show the difference. At the same time, if the two parties apply for bareboat charter registration, the ship registration authority will issue a "bareboat charter registration certificate" and remark "financial lease" in the certificate to distinguish it from a general bareboat charter.
2. Understanding of atypical guarantee attributes
How to understand that the ownership rights enjoyed by the lessor under the ship financial lease contract have atypical security attributes needs to analyze the legislative background of Article 745 of the Civil Code. This provision is an amendment to Article 242 of the Guarantee Law, which reflects the purpose of the Civil Code to eliminate implicit guarantees and gives financial lease contracts an atypical guarantee nature.
Article 242 of the Security Law stipulates that "the lessor shall enjoy the ownership of the leased property. If the lessee goes bankrupt, the leased property does not belong to the bankruptcy estate. "On the surface, a financial lease contract is a contract relating to a lease, but in fact it assumes the function of security, and the lessor's ownership is to ensure that it can obtain the rent according to the contract. According to article 242 of the Security Law, the lessor has the effect of real ownership of the leased property, so that the lessor can exercise the right of recovery when the lessee goes bankrupt. The biggest problem caused by this legal design is that the lessor's ownership of the leased property is not publicized, but it can exercise the rights of the true owner. This practice makes this kind of right that has not been publicized the most powerful effect, and also makes other parties who have the right to truly publicize in accordance with the existing legal norms not guaranteed, which will inevitably have a huge impact on the security of the transaction, especially when there may be various competing security interests such as chattel mortgage, floating charge, financial lease, retention of title, chattel pledge and so on on the same subject matter. At the same time, it will also incur huge investigation costs for the parties involved in the transaction. Therefore, the Civil Code amends Article 242 of the Security Law, which clearly stipulates that the lessor's ownership of the leased property shall not be against a bona fide third party without registration.
For the financial leasing of ships, the maritime safety administration provides a channel for the registration and publicity of the ownership of the ship enjoyed by the lessor of the financial lease. After the lessor registers the ownership in accordance with the regulations, the ownership of the ship enjoyed by the lessor will be effective against third parties, and at the same time obtain the legal effect of the atypical guarantee granted by the Civil Code.
Article 414 of the Property Rights Section of the Civil Code and Article 65 of the Interpretation of the Supreme People's Court on the Application of the Civil Code of the People's Republic of China on the Security System both reflect the atypical security nature of the financial lessor's ownership.
Therefore, it is not in accordance with the law to simply understand the atypical guarantee of a financial lease contract as the lessor is the mortgagee and the lessee is the mortgagor.
3. Reference to the registration practice of civil aircraft financial lease
Similarly, as a movable property of great value, a similar approach has been adopted for the financial leasing of civil aircraft.
According to Articles 27, 28 and 33 of the Civil Aviation Law of the People's Republic of China, the financial lease of civil aircraft refers to the lessor's purchase of civil aircraft in accordance with the lessee's choice of supplier and civil aircraft, and leasing it to the lessee for use, and the lessee pays the rent on a regular basis. During the term of the financial lease, the lessor shall enjoy the ownership of the civil aircraft in accordance with the law, and the lessee shall enjoy the right to possess, use and benefit from the civil aircraft in accordance with the law. For financial leases of civil aircraft and other leases with a lease term of more than six months, the lessee shall register its right of possession of the civil aircraft with the competent civil aviation department of the State Council; Without registration, they must not confront a third party. It can be seen that the registration of financial lease of civil aircraft is divided into the registration of ownership of the lessor and the registration of the possession of the lessee.
Through the investigation of several major domestic financial leasing companies, it is found that when carrying out civil aircraft financial leasing business, they usually sign a sales contract and a financial leasing contract, and apply to the Civil Aviation Administration of China for ownership registration and obtain the "Civil Aircraft Ownership Registration Certificate". In practice, the lessee sometimes does not apply for registration of possession. There is no obvious difference between the ownership registration of a financially leased civil aircraft and the ownership registration of a non-financially leased civil aircraft.
02 Related extensions
Article 737 of the Civil Code stipulates that: "A financial lease contract concluded by the parties in the form of a fictitious lease is invalid. In transaction practice, in order to escape financial supervision, for example, some financial institutions that do not meet the qualifications for financial lending make financial loans in the name of financial leasing, or the interest of the loan violates the requirements of interest rate control, so they choose to make loans in the form of fictitious leases, i.e., "the name of financial lease is actually a loan". In this case, the civil juristic act carried out by the actor and the counterpart with false expressions of intent is invalid. The fictitious leased object does not constitute a financial lease legal relationship, and the financial lease contract shall be deemed invalid. However, can a contract that is "called a financial lease but is actually a loan" be registered as the main contract of the ship mortgage? We believe that the lending behavior of a financial leasing company that does not have the financial lending qualification violates the national financial regulatory provisions, and therefore, the above-mentioned contract cannot be used as the main contract of the mortgage contract for the registration of ship mortgage.
Source: Ship Registration Research Office
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