Case statement. Analysis of the impact of the value of the lease on the financial leasing business.

The value of the lease is the consideration of the legal relationship of the financial lease, in practice, the value of the lease affects the legal relationship of the financial lease, there are two main situations, one is low value high sale, one is high value low sale. Judicial practice on the two forms of financial leasing legal relationship of the determination and default adjustment of the dispute, the legal relationship as a loan will also affect the amount of claims and expand the risk of litigation collection, through a brief analysis of this article.

Low-value high-selling means that the purchase price of the lease under the financial lease contract is significantly higher than the value of the lease under the contract. Low-value high-selling does not comply with Article 735 of the Civil Code: "A financial lease contract is a contract in which the lessor purchases the leased property from the seller according to the lessee's choice of the seller and the leased property, provides it to the lessee for use, and the lessee pays the rent." The financial and financing attributes of the legal relationship of the financial lease. In this case, the lessor's choice of lease is not sufficient to secure the rental claim, but rather to attach the security of its claim to the security contract. In practice, the agreement on the valuation, sale and residual value of the leased property in this case violates the rules of the legal relationship of financing, and the situation is mostly recognized as a legal relationship of lending rather than a legal relationship of financial leasing.

Referee's view:After-sale lease back refers to the lease itself is owned by the lessee, the lessee in order to achieve its financing purposes, the ownership of the property transferred to the lessor, and then leased back from the lessor of the transaction. In this case, the transfer price of the leased property (Shengli Hotel) under the Lease Back Sales Contract is only 350000000 yuan, which is obviously lower than its actual value of 601728000 yuan. Therefore, the court of first instance found that there is no real financial leasing relationship between Great Wall Leasing Company, Datong Leasing Company and Shengli Hotel, and it is not improper to establish a legal relationship of private lending in essence. The court has no objection to this.

High-value low-buy is the purchase price of the lease under the financial lease contract is significantly lower than the value of the lease. There is a dispute in judicial practice on whether the high value and low purchase agreed in the financial lease contract establishes the legal relationship of financial lease.

Referee's opinion:The purchase price of the leased property in the Financial Leasing Contract is much higher than the actual value of the leased property, and ICBC, as a professional financial leasing institution, purchases the leased property at a price more than ten times higher than the market value, which obviously deviates from the principle of equivalent exchange of sales contracts, and its rent does not reflect the true value of the leased property. The original trial found that the relationship between ICBC and Warner was an inter-enterprise lending relationship and there was nothing wrong with it.

Referee's opinion:Although the cost of the ship involved is 171 million yuan, which is much higher than the price of the "sales contract" of 60 million yuan, the sales contract in the financial lease is different from the sales contract of the general subject matter, and the price of the subject matter of the sales contract in the financial lease is usually determined by reference to the financing amount, not by reference to the actual value of the subject matter. After the expiration of the lease term and the buyer recovers the full rent, the buyer usually transfers the ownership of the lease to the lessee at a very low nominal price, so the plaintiff in this case purchased the 'Hengshunda 191 'round at a price of 60 million yuan in line with the practice of the financial leasing industry, legal and effective.

The judgment point of reference case 2 is different from that of reference case 3. The point of reference case 2 is that low-value and high-value purchase obviously deviates from the principle of equivalent exchange in the sales contract, and the rent stipulated in the financial lease contract cannot obviously reflect the actual value of the leased property. Because the leased property cannot be purchased according to the purchase price of the leased property, it does not conform to the financing property of the financial lease contract and belongs to the legal relationship of borrowing. The point of view of case 3 is that the lease of a financial lease contract is usually determined by reference to the amount of financing, not by reference to the actual value of the subject matter.

This paper holds that the lease agreed in the financial lease contract is a guarantee measure for rent claims, and high-value low-buy is common in the after-sale lease back business, according to the Supreme People's Court on the application.<中华人民共和国民法典>Article 65 of the Interpretation on the Guarantee System "If the parties request to pay the rent by auction or sale of the leased property with reference to the relevant provisions of the Civil Procedure Law" cases of realization of security interests ", the people's court shall grant permission." The law allows the lessee to pay off the rental debt by applying for an appraisal auction of the leased property, and the amount of disposal of the leased property outstanding by the lessor goes to the lessee, so the high value and low purchase does not violate the legal principle of equivalent transactions. In addition, the purchase price of the leased property is not determined by reference to the actual value of the leased property, but is based on the amount of financing. The mortgage rate of lease, collateral and other security measures also varies according to market rules, some movable property (equipment), real estate mortgage rate can reach 30%, so high value low purchase does not affect the legal relationship of financial leasing.

As to whether it is obviously high price and how to determine the value of the leased property, according to Article 12 of the Judicial interpretation of Financial Leasing, if the lessee and the lessor dispute the value of the leased property during the litigation, the people's court may determine the value of the leased property in accordance with the agreement of the financial lease contract. If the financial lease contract is not agreed or the agreement is unclear, the value of the leased property can be determined by reference to the depreciation stipulated in the financial lease lease lease lease lease contract and the residual value. If the lessee or lessor considers that the value determined in accordance with the preceding paragraph seriously deviates from the actual value of the leased property, it may request the people's court to entrust a qualified institution to evaluate or auction the determination. According to the Supreme People's Court on the application<中华人民共和国合同法>Article 19 of the (II) for Interpretation of Certain Issues (currently invalid) stipulates that for the "obviously unreasonable low price" stipulated in Article 74 of the Contract Law, the people's court shall use the judgment of the local general operator of the transaction, and refer to the transaction At the time of the transaction, the price department guide price or market transaction price, combined with other relevant factors to confirm it. If the transfer price does not reach the guiding price of the trading place at the time of the transaction or the 70% of the market transaction price, it can generally be regarded as an obviously unreasonable low price; if the transfer price is higher than the local guiding price or the 30% of the market transaction price, it can generally be regarded as an obviously unreasonable high price.

This paper summarizes the adjustment methods of the liability for breach of contract such as interest on overdue rent occupation and default payment in the case of overdue rent repayment by the lessee in practice. Specifically.

1-Before 2020

The hospital believes that "the overdue rent occupied interest required by Cathay Pacific Company to be paid by Juxin Company is calculated according to the annual lease interest rate of 7%, and the liquidated damages are calculated according to the annual interest rate of 18%. In view of the nature of overdue rent occupied interest also belongs to liquidated damages, the annual interest rate of 25% of the total sum of the two has exceeded the stipulation of 24% of the maximum annual interest rate of the total sum of private financing expenses, therefore, in accordance with the provisions of the first paragraph of Article 29 of the (II) of Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Contract Law, the Court shall adjust the liquidated damages in accordance with the law, and adjust the interest on overdue rent occupation and liquidated damages to 24% of the annual interest rate. As a result, Juxin Company shall pay Cathay Pacific Company a total of 3875771.88 yuan for overdue occupancy interest and liquidated damages as of November 25, 2019. Subsequent overdue rent occupancy interest and liquidated damages shall be calculated from November 26, 2019 to the actual payment date based on 70454294.66 yuan (due unpaid rent 30668574.96 yuan + unexpired rent 39785718.7 yuan + nominal price 1 yuan)." The judgment of the court: 1. Gaoqing Juxin Infrastructure Investment Co., Ltd. shall pay Cathay Pacific Leasing Co., Ltd. all due and unpaid rent of 30668574.96 yuan, undue rent of 39785718.7 yuan and nominal price of 1 yuan within 10 days from the effective date of this judgment, totaling 70454294.66 yuan; 2. Gaoqing Juxin Infrastructure Investment Co., Ltd. shall pay Cathay Pacific Leasing Co., Ltd. a total of 3875771.88 yuan of overdue interest and liquidated damages calculated by Cathay Pacific Leasing Co., Ltd. to November 25, 2019 and subsequent overdue interest and liquidated damages within 10 days from the effective date of this judgment (based on 70454294.66 yuan, at an annual interest rate of 24%, from November 26, 2019 to the date of actual settlement);

The Court believes that the "Financial Lease Contract" stipulates that the interest on overdue rent shall be calculated based on the unpaid amount payable, based on the 50% increase in the five-year benchmark loan interest rate of the People's Bank of China during the same period when this contract is overdue and the actual number of days occupied until the date of full payment. The liquidated damages shall be calculated based on the amount of unpaid amount payable by the overdue days multiplied by five ten thousandths of the unpaid rent until the date until the date, as the standard for calculating interest and liquidated damages for overdue rent occupancy significantly exceeds the standard of 24% of the annual interest rate, the unpaid rent due as of June 17, 2020 is calculated as $35087475, and the liquidated damages and interest for overdue rent occupancy calculated at 24% of the annual interest rate is calculated as $3228948, the court ruled that the defendant Ruzhou Transportation Investment Development Co., Ltd. should pay rent 114818276.15 yuan, liquidated damages and interest on overdue rent to the plaintiff Guotai Leasing Co., Ltd. within 10 days from the effective date of this judgment (liquidated damages are based on 114818276.15 yuan, calculated at the standard of 5/10000 per day from June 18, 2020 to the actual payment date; The interest on overdue rent is based on 114818276.15 yuan, from June 18, 2020 to the actual payment date, calculated at a 50% increase in the quoted market rate for five-year loans published by the LIBOR, and the amount of the above two combined is limited to the standard rate of 24% per annum)

The above two judgments adjusted the starting point of interest on overdue rent occupancy and liquidated damages to the lessee's overdue date, adjusting the standard annual interest rate of 24%.

2 After 2021

After the signing of the contract, Jinding Leasing Company fulfilled its obligation to pay the financing funds in accordance with the contract, and Jiachang Jingneng Company failed to fulfill its obligation to pay the rent in full and on time in accordance with the contract, which constituted a breach of contract. Jinding Leasing Company requires Jiachang Jingneng Company to pay the outstanding rent of 38.46 million yuan and the total amount of interest and liquidated damages for overdue rent up to May 31, 2021 of 27222065.45 yuan, which is in line with the contract and legal provisions, and our hospital supports it. Subsequent late payment interest and liquidated damages shall be based on 38.56 million yuan and shall continue to be calculated and paid from June 1, 2021 to the date of actual payment at four times the quoted interest rate of the loan market published by the National Interbank Lending Center. Jinding Leasing Company, without providing evidence to confirm its actual losses, demanded that the interest on overdue payments and liquidated damages be calculated at an annual interest rate of 30 per cent, which was obviously too high, the court does not support ...... The court ruled that the defendant Daqing Jiachang Jingneng Information Materials Co., Ltd. should pay the plaintiff Jinding Leasing Co., Ltd. the rent of 38.46 million yuan within 10 days from the effective date of this judgment, and the overdue payment interest and liquidated damages temporarily calculated to May 31, 2021 totaling 27222065.45 yuan; the subsequent overdue payment interest and liquidated damages shall be based on 38.46 million yuan from June 1, 2021 to the actual payment date, continue to calculate and pay according to four times the quoted interest rate of the loan market published by the National Interbank Funding Center;

During the trial, the plaintiff made the second claim clear as 70187.76 yuan, which was composed as of February 27, 2022, with a penalty interest of 26945.77 yuan, a penalty of 43041.99 yuan and a retained purchase price of 200 yuan. In this regard, the Court believes that the amount of penalty interest and liquidated damages, both of which fall within the scope of liability for breach of contract, should be considered together. Combined with the situation of this case, the two are combined and calculated, taking into account many factors such as the actual performance of the contract, the car payment, the hard loss of people's livelihood finance, etc., it is determined as appropriate to take the date of the defendant's last repayment (that is, December 24, 2021) as the starting point, based on the rent still owed of 215209.95 yuan, and calculated according to 4 times the one-year loan market quotation interest rate published by the National Interbank lending Center in November 2020. As for the retained purchase money of 200 yuan claimed by the plaintiff, the plaintiff did not provide evidence to prove his claim, so this court does not support it... "The court ruled that 1. Li Laiping should pay the rent of 215209.95 yuan owed by Minsheng Financial Leasing Co., Ltd. within ten days from the effective date of this judgment; 2. Li Laiping to pay the economic losses of Minsheng Financial Leasing Co., Ltd. within ten days from the effective date of this judgment (based on the rent still in arrears of 215209.95 yuan, from December 24, 2021 to the date of actual payment, according to 2020 Calculated at 4 times the quoted interest rate of the one-year loan market announced by the National Interbank Lending Center in November);

After 2021, the standard principle of overdue rent occupancy interest and default payment cannot exceed 4 times the one-year loan market quotation rate published by the National Interbank Lending Center.

1, Beijing court liquidated damages adjustment

The referee held that the financial lease legal relationship should not apply the LPR adjustment of 4 times private lending, but should be adjusted at an annual interest rate of 24%.

Judgment view: The lessee shall pay rent in accordance with the agreement, the lessee shall perform the obligation to pay rent or delay the performance of other payment obligations, the lessor in accordance with the agreement of the financial lease contract requires the lessee to pay overdue interest, the corresponding breach of contract, the people's court shall support. This case is a dispute over a financial lease contract, and the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases are not applicable ...... However, the two parties agree to calculate the liquidated damages and late fees based on the total amount of financing, which is too high, and will cause the sum of the rental interest, liquidated damages and late fees generated by the amount of financing involved to exceed the amount of interest calculated at 24% of financing at the annual interest, which is adjusted by the court in accordance with the court. Reference case: Shenzhen United Lixin Financial Leasing Co., Ltd. and the road financial leasing contract dispute first instance civil judgment (2021) Beijing 0108 Minchu 41131. Haohan (Shanghai) Financial Leasing Co., Ltd. and other financial leasing contract disputes second-instance civil judgment Beijing Higher People's Court (2021) Jingmin Zhongzong No. 804

2. Adjustment of liquidated damages of Shanghai court

Most of the referee cases are adjusted according to the 24% interest rate standard. Reference Case: Civil Judgment of First Instance of Civil Disputes over Financial Leasing Contracts between Kaijing Financial Leasing (Shanghai) Co., Ltd. and Yang Jinshan (2021) Shanghai 0115 Minchu No. 105190; Shanghai Kaizheng Financial Leasing Co., Ltd. and Sun Jizhou Financial Leasing Contract Dispute Civil First Instance Civil Judgment (2021) Shanghai 0115 Minchu No. 53688

3. Adjustment of liquidated damages of Tianjin court

Since the second half of 2021, the Tianjin Court has ruled on the standard standard of liquidated damages for financial leasing contracts at 5/10000 per day. This standard is mainly due to the "Reply of the Supreme People's Court on the Application Scope of the Judicial Interpretation of New Private Lending" issued on December 29, 2020. It is clearly stipulated that local financial organizations such as financial leasing companies are financial institutions approved by the financial regulatory authorities, and disputes arising from their engagement in related financial businesses, the new judicial interpretation of private lending is not applicable. In order to distinguish it from the "four times the quoted interest rate of the one-year loan market" in private lending, the Tianjin court currently applies the "five-tenths of a day" standard in the trial of financial leasing disputes. Specifically, reference may be made to Article 192 of the Payment and Settlement Regulations, which stipulates that "the payer's bank shall calculate the compensation for overdue payments to the payer on the basis of the amount of overdue payments and the number of days overdue, at five-tenths of a million per day." Article 15 of the Regulations on Guaranteeing Payment of Funds for Small and Medium-sized Enterprises stipulates that "if organs, institutions and large enterprises delay in making payments to small and medium-sized enterprises, they shall pay overdue interest. If both parties have an agreement on the interest rate for overdue interest, the agreed interest rate shall not be lower than the market quoted interest rate for one-year loans at the time of the conclusion of the contract; if no agreement is made, the overdue interest shall be paid at 5/10000 per day." Article 32 of the Law on the Administration of Tax Collection stipulates that "if a taxpayer fails to pay the tax within the prescribed time limit, and if the withholding agent fails to pay the tax within the prescribed time limit, the tax authorities shall, in addition to ordering the payment within a time limit, charge a late fee of five ten thousandth of the overdue tax on a daily basis from the date of the overdue tax payment" and other laws and regulations.

If the leased property is untrue or the lessor is unable to prove that the leased property has actually been delivered to the lessee for use, the people's court shall invalidate the financial lease contract concluded by the parties in the form of fictitious leased property in accordance with Article 737 of the the People's Republic of China Civil Code." The legal relationship of financial leasing is found to be invalid and is tried in accordance with the legal relationship of private lending. The deposit and handling fee often included in the financial leasing business will be recognized as beheading interest, and according to Article 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, "the amount of the loan stated in the debt documents such as IOUs, receipts and IOUs shall generally be recognized as principal. If interest is deducted from the principal in advance, the people's court shall recognize the actual amount lent as principal." Direct deduction from the purchase price of the leased property, the amount after deduction is the principal of the loan, and according to Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, the people's court shall determine that the private lending contract is invalid: (1) taking loans from financial institutions for on-lending; (II) to borrow from other profit-making legal persons and raise funds from employees of the unit, or on-lending of funds obtained by illegally absorbing deposits from the public; (III) lenders who have not obtained lending qualifications in accordance with the law to provide loans to unspecified objects in society for the purpose of profit; (IV) the lender knows or should know in advance that the borrower's loan is used for Illegal and criminal activities still provide loans; (V) violate the mandatory provisions of laws and administrative regulations; (VI) violate public order and good customs. and calculate the interest on the loan at the interest rate agreed upon in the financial lease contract." Evaluate the legal effect of private lending. In addition, since a financial lease legal relationship is not established, it is naturally impossible to secure a rental claim with the lease.

Reference cases: Liulin Haobo Coal Coke Co., Ltd. and Shanxi Liansheng Energy Investment Co., Ltd. Civil Judgment of Second Instance on Disputes over Financial Leasing Contracts Supreme People's Court (2016) Supreme Law Civil Final No. 286.

In judicial practice, the situation of low value and high sale of leased goods is identified as the lack of the true meaning of financial leasing, and is identified as the legal relationship of borrowing. As to whether the high value and low sale of the lease belongs to the legal relationship of financial lease, there is a dispute in practice, and this paper holds that the high value and low sale conforms to the industry law of the lease guarantee rent claim, and does not violate the principle of equivalent transaction, and should not hinder the legal relationship of financial lease. For the adjustment of the liability clause of the financial lease contract for breach of contract, the discretion of the courts varies from place to place, Jinan Intermediate Court before 2020 to the annual interest rate of 24% as the discretion standard. Judgements after 2021 are mostly adjusted by four times the one-year LPR, which is based on the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases. The Shanghai Court and the Beijing High Court have both argued that the legal relationship of financial leasing should not be subject to the adjustment of private lending provisions, and that a 24% adjustment should be applied. Since the second half of 2021, the Tianjin Court has decided on the standard standard standard for liquidated damages for financial lease contracts at five ten thousandths of a day. If the legal relationship is determined to be a loan, it will lead to the financial leasing business to charge fees, deposits, etc. as a beheading interest treatment directly affect the amount of the claim, and if the legal relationship is determined to be a loan, it will also lead to the loss of the lease security function of the financial leasing business to expand the risk that the claim cannot be realized.