What is called a financial lease is actually a loan.，How much do you know about the consequences? (What you need to know about leasing)

What is called a financial lease is actually a loan.，How much do you know about the consequences? (What you need to know about leasing) Once the court determines that “what is called a financial lease is actually a loan”，What are the consequences? Introduction：one、This case is a typical case by the Supreme Court regarding what is called a financial lease but is actually a loan.。two、How to determine whether a financial lease is actually a loan? How effective is an inter-enterprise loan contract? What is the validity of the guarantee contract when it is called a financial lease but is actually a loan? The Supreme Court has clear reasons for its decision。

three、In practice，Once the court determines that "what is called a financial lease is actually a loan"，The validity of guarantee contracts often becomes a key focus of court disputes，of great importance to all parties involved。Four、Lawyer Zhiren Xiaowen, editor of Jinlitigation Circle, believes that，This case is worth studying and learning from。Once the court determines that "what is called a financial lease is actually a loan"，What are the consequences for financial leasing companies? How to prevent legal risks caused by rental properties? Text has eye prompts。

referee logic：one、Financial leasing transactions have the dual attributes of financing and property financing，indispensable。If there is no actual leased property or the ownership of the leased property has not been transferred from the seller to the lessor, or the value of the leased property is obviously low, it cannot serve as a guarantee for the lease claim.，It should be determined that this type of financial lease contract does not have the property of financing property，Only empty funds，It is actually a loan in the name of financial leasing.，It should be a loan contract。

two、Because what is considered a financial lease is actually an inter-enterprise loan contract，The nature and effectiveness of different lending behaviors should be determined differently，between enterprises that do not have the qualifications to engage in financial business，Temporary fund lending activities for production and operation needs，If there is no evidence to prove that the financial leasing company of the party providing funds is not a regular business of financing、Main business or main source of profit，It does not constitute a violation of the mandatory provisions of national financial controls.，The loan contract should not be deemed invalid。

three、The main contract should be identified as a finance lease，Actually a corporate loan dispute，This identification is only a characterization of the nature of the legal relationship，does not negate the validity of the contract，It also does not change the identity of the debt borne by the debtor of the main contract.。therefore，The main contract is valid，The corresponding sub-contracts "Guarantee Contract" and "Pledge Contract" are also valid contracts。

Case index：The Second Instance Civil Judgment (2014) Min Er Zhong Zi No. 109 issued by the Supreme People's Court on March 17, 2025。Cause of the case and the parties involved in the case: the appellant (defendant in the first instance)：Shandong Xinhai Investment Co., Ltd.。Address：No. 13, West Outer Ring Road, Zhangqiu City, Shandong Province。Appellant (defendant in first instance)：Shandong Xinhai Guarantee Co., Ltd.。Appellee (Plaintiff in the first instance)：Cathay Leasing Co., Ltd.。Defendant in the original trial：Shandong Sanwei Real Estate Co., Ltd.。

Defendant in the original trial：Zhang Hui，male，Legal representative of Shandong Sanwei Real Estate Co., Ltd.。Defendant in the original trial：Zhang Hao，male，Shareholder of Shandong Sanwei Real Estate Co., Ltd.。

Appellant Shandong Xinhai Investment Co., Ltd. (hereinafter referred to as Xinhai Investment Company)、Shandong Xinhai Guarantee Co., Ltd. (hereinafter referred to as Xinhai Guarantee Company) and the appellee Cathay Leasing Co., Ltd. (hereinafter referred to as Cathay Leasing Company)、The defendant in the original trial, Shandong Sanwei Real Estate Co., Ltd. (hereinafter referred to as Sanwei Real Estate Company)、Defendant in the original trial Zhang Hui、The case of dispute over loan contract between the defendant Zhang Hao in the original trial，Dissatisfied with the Civil Judgment of Shandong Provincial Higher People’s Court (2013) Lu Shangchu Zi No. 33，Appeal to this Court。

Shandong Provincial Higher People's Court first instance ruling：2011年7月12日，Cathay Leasing Company and Sanwei Real Estate Company signed Guoleasing (11) Hui Zi No. 2 "Financial Lease Contract"，It is agreed that Sanwei Real Estate Company will transfer the ownership of 137 sets of commercial housing in the "Dadi Ruicheng" project to Cathay Leasing Company，Then rent the commercial house back，Financing amount 100 million yuan，Lease annual interest rate 20%，The total rent is 1 yuan (including the nominal price of 1,000 yuan)，The lease period is from July 12, 2011 to October 12, 2011；During the lease period，If the People’s Bank of China raises its benchmark interest rate，Cathay Leasing will increase leasing rates by an equal amount；Within 90 days from the date of signing this contract，Sanwei Real Estate Company should, together with Cathay Leasing Company, go to the real estate authorities to handle the online signing procedures.，otherwise，Deemed a breach of contract by Sanwei Real Estate Company；After signing this contract，Cathay Leasing Company fulfills its obligation to pay the purchase price to Sanwei Real Estate Company；After Sanwei Real Estate Company has paid off the rent and other payments,，The leased property under this contract will be purchased by Sanwei Real Estate Company for a nominal price of 1,000 yuan.。

It is also agreed that Sanwei Real Estate Company fails to pay due rent and other payments in full and on time.，deemed a breach of contract，Cathay Pacific Leasing Company shall pay liquidated damages and overdue rent occupation interest.。

Overdue rent occupation interest is based on the principal amount of unpaid rent payable、Lease annual interest rate、Occupied days are calculated daily；Liquidated damages are charged at 50,000 per day of the unpaid rent.；At the same time, it is agreed that if one party commits a breach of contract or infringement,，Must bear the legal fees incurred by the other party to realize the creditor's rights、attorney fees and others

cost

wait。2011年7月12日，Cathay Leasing Company and Xinhai Investment Company、Xinhai Guarantee Company signed the Guarantee Contract No. 2 of Guolyu (11) Guarantee。

Agreement：Xinhai Guarantee Company、Xinhai Investment Company agreed to provide an irrevocable joint and several liability guarantee for all debts owed by Sanwei Real Estate Company to Cathay Leasing Company under Guoleasing (11) Huizi No. 2 "Financial Lease Contract"。The scope of guarantee covers all debts under the main contract，including but not limited to rent、handling fee、Rent occupation interest、liquidated damages、Litigation fees and attorney fees, etc.。The guarantee period is 2 years。

Xinhai Guarantee Company、The board of directors of Xinhai Investment Company passed a resolution on the above-mentioned "Guarantee Contract" on the same day。same day，Zhang Hui, the legal representative of Sanwei Real Estate Company, and Zhang Hao, the shareholder of the company, issued a personal guarantee statement and voluntarily assumed joint liability for the debts under the contract of Sanwei Real Estate Company.。The warranty scope and warranty period are the same as those stipulated in the above-mentioned "Guarantee Contract"。

The day after the above contract is signed，Cathay Leasing Company is about to transfer 100 million yuan into the account of Sanwei Real Estate Company through online banking。2011December 20，Cathay Leasing Company and Sanwei Real Estate Company signed a supplementary agreement，It was agreed to extend the rent payment to December 20, 2012，The total rent is 127.7411 million yuan，Pay in 5 installments。

2011December 26，Cathay Leasing Company signed a "Pledge Contract" with Zhang Hui，It is agreed that Zhang Hui will use his 49% equity stake in Sanwei Real Estate Company to provide pledge guarantee for the debts under the above contract.，and registered the equity pledge establishment with the Shandong Provincial Administration for Industry and Commerce.，The registration number is Lu Industrial and Commercial Stock Registration Individual Character (2011) No. 0528。

2012December 20，Cathay Leasing Company and Sanwei Real Estate Company signed a supplementary agreement，Agree to extend the rent payment under the contract，Exhibition period until July 15, 2013，It was agreed that the total rent is 148228296.18 yuan，Pay in 3 installments。Zhang Hui issued a confirmation letter on December 20, 2012，Commitment to continue to provide pledge guarantee for the debts under the contract of Sanwei Real Estate Company。

During the execution of the agreement，Sanwei Real Estate Company paid a total of 6.33 million yuan (of which 5 million yuan was paid during the lease period，The rest will be paid during the extension period)，2011After the expiration of the compensation agreement on December 20,，Sanwei Real Estate Company failed to pay rent or interest.。

Calculated based on the above contract stipulations，As of August 31, 2013，Sanwei Real Estate Company defaults on rent payment

1. 2Yuan and interest on overdue rent as of August 31, 2013、The liquidated damages are
2. 14Yuan。

2013年9月25日，Cathay Leasing Company entrusted lawyers from Shandong Zhongcheng Renhe Law Firm to represent the guarantor Xinhai Guarantee Company、Xinhai Investment Company、Zhang Hui、Zhang Hao mailed a lawyer’s letter，

Require

Each guarantor bears joint and several liability。Cathay Leasing Company signed an agency contract with Shandong Zhongcheng Renhe Law Firm for this case，Entrust a lawyer from this firm to represent you in litigation，and paid attorney fees of 592,213 yuan.。

in the first instance trial，Cathay Leasing Company reaches agreement with Sanwei Real Estate Company：Cathay Leasing Company and Sanwei Real Estate Company agreed，Sanwei Real Estate Company owes Cathay Leasing Company loans and interest、The total amount of liquidated damages is determined as follows:：Within the contract period (July 12, 2011 to October 12, 2011)，Based on the loan principal of 100 million yuan，Interest is calculated based on the contracted annual interest rate of 20%；After the contract expires，That is, after October 13, 2011，Based on the loan principal of 100 million yuan，Calculate interest at an annual rate of 10%。

1. Cathay Leasing Company and Sanwei Real Estate Company confirmed，Sanwei Real Estate Company has paid 5 million yuan in interest to Cathay Leasing Company during the term of the financing contract (July 12, 2011 to October 12, 2011)，And has paid interest of 1.33 million yuan after the expiration of the contract, that is, after October 13, 2011.。

The first instance will be determined separately，The leased property involved in the case belongs to Dadi Ruicheng Community

1. 6137 sets of commercial housing in building No.，total
2. 58square meters。The original plan of Dadi Ruicheng Community is，The number of floors should be 19，In fact, the number of floors in the building is 33.，Over construction of planning department

Require

。

Accordingly，The Jinan Municipal Urban Management and Administrative Law Enforcement Bureau issued Jicheng Direct Suspension No. 2435 to Sanwei Real Estate Company.、Jicheng Zhizhi stop character

1. No. 1684 "Decision Ordering to Stop Illegal Construction"，Recognized according to law
2. 6Building No. 1 is an illegal building constructed beyond the planned plan.，Order Sanwei Real Estate Company to immediately stop illegal construction。

2013年8月14日，Jinan Municipal Planning Bureau issued a reply letter to Sanwei Real Estate Company confirming the planning of the excess area.，Plan and confirm the current status of residential construction and the over-area part of the Dadi Ruicheng project，and ordered Sanwei Real Estate Company to complete relevant procedures and pay relevant fees.。The rental property involved in the case has not yet obtained a pre-sale permit.。

Cathay Leasing Company filed a lawsuit with the Shandong Provincial Higher People’s Court on September 24, 2013, claiming that：After the "Financial Lease Contract" involved in the case was signed,，Cathay Pacific Leasing Company has fulfilled its contractual obligations in accordance with the agreement，However, Sanwei Real Estate Company failed to pay the rent as agreed。After negotiation between the two parties, on December 20, 2011、2012A supplementary agreement was signed on December 20,，However, Sanwei Real Estate Company has still not repaid its debts.。

Request a decree：one、Sanwei Real Estate Company pays rent to Cathay Leasing Company

1. 2Yuan and overdue rent occupation interest、Liquidated damages (tentatively calculated until August 31, 2013)
2. 14Yuan)；two、Sunway Real Estate Company compensates Cathay Leasing Company for the legal fees paid in this case；three、Xinhai Investment Company、Xinhai Guarantee Company、Zhang Hui、Zhang Hao vs. No. 1、Two requests for joint liability for repayment；Four、Cathay Leasing Company has priority in receiving repayment for the 49% equity interest in Sanwei Real Estate Company held by Zhang Hui.。

five、Sanwei Real Estate Company、Xinhai Investment Company、Xinhai Guarantee Company、Zhang Hui、Zhang Hao is responsible for all litigation in this case

cost

。The Higher People's Court of Shandong Province held that：The focus of the dispute in this case is：one、The nature and validity of the "Financial Lease Contract" involved in the case；two、The validity of the "Guarantee Contract" and the "Pledge Contract" and whether each guarantor should bear the guarantee liability。Regarding the nature and validity of the contract in this case。

According to Article 1 of the "Interpretation of the Supreme People's Court on Issues Applicable in the Trial of Financial Lease Contract Disputes"，"The People's Court shall, in accordance with Article 237 of the Contract Law，Combined with the nature of the subject matter、value、The composition of rent and the contractual rights and obligations of the parties，Determine whether a financial lease legal relationship is constituted。

financial leasing contract，However, it does not actually constitute a legal relationship of financial leasing.，The people's court should handle the matter in accordance with the actual legal relationship。"Article 237 of the Contract Law of the People's Republic of China，“A financial lease contract is a contract between the lessor and the seller based on the lessee’s、Selection of rental properties，Purchase the leased property from the seller，available to tenants，A contract whereby the lessee pays rent。

"It can be seen from the definition of financial lease contract in this regulation that，A financial lease contract has the characteristics of combining financing and property financing.，The financial leasing relationship includes two transactions，One is the sales contract between the supplier and the lessor，The second is the lease contract between the lessee and the lessor。Two contracts are combined with each other，constitutes a financial lease contract。

The Higher People's Court of Shandong Province held that，Combined with the above provisions，An analysis of the nature of the contract involved is as follows:：First，In this case, the lessor did not actually own the leased property.。

In this case，Although Cathay Leasing Company purchased the leased property of Sanwei Real Estate Company - commercial housing agreement，But when signing a financial lease contract，The 137 commercial houses involved in the lease are illegal constructions，No pre-sale license has been obtained，The ownership of the leased property cannot be transferred to the lessor (or buyer)，In fact, the ownership of the leased property has not yet been transferred to Cathay Pacific Leasing Company.。second，The value of the leased property involved in the case is quite different from the rent.，The sales contract does not actually exist。

137 units purchased by Cathay Leasing Company

1. 58Square meters of commercial housing，According to the local price of the same type at that time，The value of these 137 commercial houses will not be less than
2. 6billion，The purchase price stipulated in the contract is 100 million yuan，The sales contract is not an exchange of equal value。therefore，There is no real sales contract transaction between Cathay Leasing Company and Sanwei Real Estate Company.。third，In fact, the contract involved in the case does not have a real legal relationship of a lease contract.。

Article 212 of the Contract Law of the People's Republic of China，A lease contract is when the lessor delivers the leased property to the lessee for use.、income，A contract whereby the lessee pays rent。In this case, the property owner of the so-called leased commercial house is Sanwei Real Estate Company.，It is impossible for Sanwei Real Estate Company to unilaterally create a leasing relationship with its own commercial housing.。Normally，The rent in a finance lease reflects the value of the leased object。

The value of the so-called leased property in this case is not less than

1. 6billion，The rent stipulated in the contract is
2. 05billion，Its rent does not truly reflect the value of the leased property。Combined with the characteristics of the leased property in this case being commercial housing (residential)，Sanwei Real Estate Company leased back the leased property and it cannot be used.，nor through possession、gain from use。Therefore, the contract signed by the parties in this case，Although there are formal agreement on lease terms，But in fact there is no legal relationship in a lease contract。

fourth，The contract involved is called a financial lease contract，Actually a capital loan relationship。stipulated in the contract，Cathay Leasing Company paid 100 million yuan to Sanwei Real Estate Company，Sanwei Real Estate Company pays rent to Cathay Leasing Company based on an annual interest rate of 20%，If the People’s Bank of China raises its benchmark interest rate，Cathay Leasing will increase leasing rates by an equal amount，That is, the two parties are actually in a "borrowing money and repaying money" relationship.。

Based on the above agreement and combined with the previous analysis and opinions of the hospital,，The main contract in this case is purely financing，There is no melt。There is a loan relationship between Cathay Leasing Company and Sanwei Real Estate Company。That is to say, the nature of the contract in this case is called financial lease, but it is actually an inter-enterprise loan.。Regarding the validity of the contract involved in the case。

Cathay Leasing Company is a financial leasing company approved by the Ministry of Commerce，Sanwei Real Estate Company and others have no evidence to prove that Cathay Leasing Company’s main business is the granting of loans.，Does not meet the invalid situation。Moreover，Lending practices of Cathay Leasing Company and Sanwei Real Estate Company，Does not violate the mandatory provisions of laws and regulations，The main contract involved in the case is a valid contract。Xinhai Investment Company、The reasons why Xinhai Guarantee Company and others argue that the contract and the supplementary agreement are invalid cannot be established.，The hospital does not support。

Regarding the validity of the "Guarantee Contract" and the "Pledge Contract" and whether each guarantor should bear the guarantee liability。根据前述，The main contract involved in the case is valid。The "Guarantee Contract" and "Pledge Contract" in this case are the true expressions of intention of the parties，The content and form do not violate the mandatory provisions of the law，Also a valid contract。Cathay Leasing claimed rights against each guarantor during the guarantee period。

The guarantor in this case, Zhang Hui, is the legal representative of Sanwei Real Estate Company、Zhang Hao is a shareholder of Sanwei Real Estate Company，He should know the fact that the main contract is actually an inter-enterprise loan，Therefore, it should be in accordance with the provisions of the "Guarantee Contract" or "Pledge Contract"，assume guarantee liability。

Xinhai Investment Company and Xinhai Guarantee Company，Investing as a professional、guarantee company，You should understand the risks you may bear under warranty liability，Know or should know the fact that the main contract in this case is called a financial lease and is actually an inter-enterprise loan，Therefore, it should bear guarantee liability in accordance with the scope of guarantee stipulated in the "Guarantee Contract"。

In first instance litigation，Cathay Leasing Company reaches agreement with Sanwei Real Estate Company，Redefined the calculation method of primary debt："During the contract period (July 12, 2011 to October 12, 2011)，Based on the loan principal of 100 million yuan，Interest is calculated based on the contracted annual interest rate of 20%；After the contract expires，That is, after October 13, 2011，Based on the loan principal of 100 million yuan，Calculate interest at an annual rate of 10%。

"In this agreement，Both parties lowered interest rates，Cathay Pacific Leasing Company waives liquidated damages，This is an act by Cathay Pacific Leasing Company to dispose of its rights.，Its legal validity was confirmed by the Shandong Provincial Higher People’s Court.。The conclusion of this agreement，Reduces the guarantee liability of each guarantor，Therefore, the guarantor shall bear the guarantee liability on the basis of this agreement。The contract in this case stipulates that if one party breaches the contract or commits infringement，Must bear the legal fees incurred by the other party to realize the creditor's rights、attorney fees and others

cost

。

The guarantee contract stipulates that the scope of guarantee shall cover all debts and attorney fees under the main contract, etc.。in this case，Cathay Leasing Company appoints lawyer to participate in litigation，A total of 592,213 yuan in agency fees paid。Therefore, Cathay Leasing Company shall be liable to the judgment debtor and guarantor for the

cost

Litigation requests shall be supported in accordance with the law。

To sum up，The Shandong Provincial Higher People's Court ruled as follows:：one、Sanwei Real Estate Company paid the loan principal of 100 million yuan and interest to Cathay Leasing Company within ten days from the date of the judgment (from July 12, 2011 to October 12, 2011，Based on the loan principal of 100 million yuan，Calculated based on the contracted annual interest rate of 20%，2011October 13, 2019 to the date when this judgment comes into effect，Based on the loan principal of 100 million yuan，Calculated based on annual interest rate of 10%，and deducting interest paid of RMB 6.33 million)；two、Sanwei Real Estate Company shall pay Cathay Leasing Company within ten days from the date of the judgment to realize the creditor's rights.

cost

592213Yuan；three、Xinhai Investment Company、Xinhai Guarantee Company、Zhang Hui、Zhang Hao expressed his opinions on the above mentioned situation of Sanwei Real Estate Company.、Joint liability for two debts；Four、Sanwei Real Estate Company fails to fulfill the above-mentioned、Two debts，Cathay Leasing has the right to discount Zhang Hui’s 49% stake in Sanwei Real Estate Company、or auction、The proceeds from the sale will be paid first；five、Dismissal of Cathay Pacific Leasing Company's other litigation claims；six、Xinhai Investment Company、Xinhai Guarantee Company、Zhang Hui、After Zhang Hao assumed the guarantee responsibility,，The right to recover compensation from Sanwei Real Estate Company。

If the payment obligation is not fulfilled within the period specified in the judgment，shall be in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China，Double interest payments on debts during the period of delayed performance。Case acceptance fee 815022 yuan，Paid by Sanwei Real Estate Company。

Xinhai Investment Company、Xinhai Guarantee Company refuses to accept the above judgment of Shandong Provincial Higher People’s Court，appeal to this court stating：one、The "Financial Lease Contract" involved in the case should be determined to be invalid.，The Guarantee Contract is also invalid。

Operating financial leasing business is a franchise business，Cathay Leasing Company is a financial leasing company approved by the Ministry of Commerce，Not qualified to operate financial leasing，The case involved a "financial lease contract" due to violation of state restrictions on business operations.、The franchise shall be invalid。

Even if the nature of the contract involved in the case is called a financial lease as determined by the first instance, it is actually an inter-enterprise loan contract.，Cathay Leasing Company is a legal person that does not have the qualifications to operate loan business.，Granting loans to external parties in the name of financial leasing，and earn high interest from it，His behavior is to use the legal form of financial leasing to cover up the illegal purpose of obtaining benefits from external loans.，and is against the law、Mandatory provisions of administrative regulations。

It is a common business model for Cathay Leasing Company to issue loans to external parties in the name of financial leasing.，disrupt normal financial order，The main contract involved in this case should be deemed invalid。According to the provisions of Article 5 of the Guarantee Law of the People's Republic of China，The main contract of this case is invalid，The Guarantee Contract is also invalid。two、Even if the main contract involved in the case is valid，Xinhai Investment Company、Xinhai Guarantee Company does not assume guarantee liability according to law.。

Xinhai Investment Company、Xinhai Guarantee Company intends to provide guarantee for financial lease contracts，rather than providing security for the loan contract，The "Guarantee Contract" involved was invalid due to the lack of the guarantor's intention to provide guarantee for the loan contract.；The leased property involved in the case is an illegal building constructed beyond the planned plan.，This illegal building cannot be signed online and property rights transferred.。

Sunway Real Estate Company and Cathay Leasing Company deliberately concealed the above facts when entering into the contract.，Xinhai Investment Company、Xinhai Guarantee Company mistakenly believed that Cathay Leasing Company could obtain ownership of the leased property involved in the case in accordance with the contract，Their behavior should be regarded as joint fraud，Fraudulent guarantee。

According to the provisions of Article 30 of the Guarantee Law，Xinhai Investment Company、Xinhai Guarantee Company shall not bear guarantee liability；Other，Cathay Leasing Company only stamped the official seal and the private seal of the legal representative on the Guarantee Contract.，Without the signature of a legal representative or authorized agent，According to the contract，The "Guarantee Contract" has not taken effect，Xinhai Investment Company、Xinhai Guarantee Company should not assume guarantee liability；Xinhai Investment Company、Xinhai Guarantee Company has never agreed to the two supplementary agreements signed by Cathay Leasing Company and Sanwei Real Estate Company and the settlement agreement reached during the first instance litigation process.，and has not signed or stamped the above documents.，therefore，Xinhai Investment Company、Xinhai Guarantee Company shall not continue to bear the guarantee liability after the change of the main contract；Cathay Leasing Company allowed the leased property involved in the case to be arbitrarily disposed of by Sanwei Real Estate Company，He is also at fault for the losses he suffered，to the extent of its fault，Xinhai Investment Company、Xinhai Guarantee Company shall not bear guarantee liability。

three、Xinhai Investment Company、Xinhai Guarantee Company was not at fault for the finding that the "Financial Lease Contract" and "Guarantee Contract" involved in this case were invalid.，The invalidity of the contract in this case was entirely caused by Cathay Leasing’s fault.，According to Article 7 of the "Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Guarantee Law of the People's Republic of China"、Provisions of Article 8，Xinhai Investment Company、Xinhai Guarantee Company shall not bear civil liability。

To sum up，Request for second instance：

1. Revoke the third item of the original judgment，Change the sentence of Xinhai Investment Company in accordance with the law、Xinhai Guarantee Company does not assume joint and several liability for the debts of Sanwei Real Estate Company；
2. Case 1、The litigation costs of the second instance shall be borne by Cathay Leasing Company。Cathay Pacific Leasing Company responded：one、The court of first instance determined that the "Financial Lease Contract" involved in the case was a legal relationship between enterprises.，and deemed the contract to be valid，Comply with relevant laws, regulations and judicial interpretations。

Cathay Leasing Company conducts sale and leaseback business as a financial leasing company，No qualifications for operating financial leasing are required，Do not operate in violation of national restrictions、Franchise and law、Administrative regulations prohibiting business operations；Current laws, regulations and judicial interpretations do not explicitly prohibit the use of real estate as the subject matter of financial leasing.，Nor does it specify the lease term、Rent composition、Clear provisions on transfer of property rights, etc.，The "Financial Lease Contract" between Cathay Leasing Company and Sanwei Real Estate Company does not violate the law、Mandatory provisions on the effectiveness of administrative regulations；Cathay Leasing Company’s true intention is to provide financing to Sanwei Real Estate Company in the form of financial leasing.，Rather than directly lending money to obtain illegally high interest rates，There is no legal form to cover up illegal purposes；Cathay Leasing Company does not provide loans as its main business、Nor does lending income serve as the main source of profit，It has never directly extended loans to external parties.，It is not a violation of the mandatory provisions of national financial controls.，Therefore, Cathay Leasing Company’s financing behavior from Sanwei Real Estate Company，should be deemed legal and valid。

If this is simply regarded as illegal granting of external loans,，It will undoubtedly seriously affect the development of my country's financial leasing business.。two、The Guarantee Contract involved in the case is legal and valid，Xinhai Investment Company、Xinhai Guarantee Company shall bear joint and several liability for guarantee。

The "Guarantee Contract" has been signed and confirmed by the legal representatives of all parties and stamped with their official seals.，It has been adopted by the board of directors of the two appellants and has come into effect.；In accordance with the "Guarantee Contract"，Xinhai Investment Company、Xinhai Guarantee Company’s guarantee scope covers all debts under the main contract，Even if the nature of the main contract is determined by the first instance to be called a financial lease, it is actually a loan contract.，Nor can the "Guarantee Contract" be deemed invalid just because there is no expression of intention to guarantee the loan in the Guarantee Contract.；Xinhai Investment Company、Xinhai Guarantee Company is a professional investment guarantee company，You should be aware of the legal consequences of providing guarantees to Sanwei Real Estate Company。

Moreover，When the contract involved in the case was signed，This coincides with the expiration of a debt of 100 million yuan owed by Sanwei Real Estate Company to Xinhai Investment Company.，When Sanwei Real Estate Company is unable to repay，Xinhai Investment Company、Xinhai Guarantee Company introduced Cathay Leasing Company to provide the RMB 100 million financing involved in the case to Sanwei Real Estate Company and recovered the above 100 million yuan arrears from Sanwei Real Estate Company. It is the actual beneficiary of the financing involved in the case.。

therefore，Xinhai Investment Company、Xinhai Guarantee Company claimed that Sanwei Real Estate Company and Cathay Leasing Company jointly committed fraud and requested exemption from guarantee liability.，No factual or legal basis；The property involved does not have a pre-sale permit，Cathay Leasing Co. cannot restrict Sanwei Real Estate Co. from illegally selling privately，It is even more impossible to handle the transfer of the property involved in the case.，There is no behavior that allows losses to expand，Xinhai Investment Company、Xinhai Guarantee Company’s claim to be exempted from the “expansion of losses” part of the guarantee liability cannot be established.；Although Cathay Leasing Company and Sanwei Real Estate Company have not obtained Xinhai Investment Company、Xinhai Guarantee Company agreed to sign two extension agreements，but not actually implemented，The mediation agreement reached in the first-instance litigation actually reduced the guarantor’s liability，According to the provisions of Article 30 of the "Interpretations of the Supreme People's Court on Certain Issues Concerning the Application of the Guarantee Law of the People's Republic of China"，Xinhai Investment Company、Xinhai Guarantee Company shall assume joint and several liability for the debts determined in the agreement。

To sum up，Requesting the second instance to reject the appeal，Uphold the original verdict。Sanwei Real Estate Company responded：one、The Guarantee Contract involved in the case has been established and taken effect。Cathay Leasing Company has stamped the company seal and the private seal of the company’s legal representative on the Guarantee Contract，His behavior complies with the provisions of the Contract Law on the establishment of a contract，The "Guarantee Contract" has been established and comes into effect。

two、Xinhai Investment Company、Xinhai Guarantee Company’s claim that Sanwei Real Estate Company and Cathay Leasing Company jointly committed fraud to obtain guarantees lacks factual basis.。The background of the signing of the "Financial Lease Contract" involved in the case is：Xinhai Investment Company entrusted Qilu Bank Co., Ltd. Jinan Chengxi Branch to issue a loan totaling 100 million yuan to Sanwei Real Estate Company on July 12, 2010.，The agreed loan period is one year。

Because Sanwei Real Estate Company cannot repay the loan on time，Therefore, the parties agreed，Borrowing money from Sanwei Real Estate Company from Cathay Leasing Company，And by Xinhai Investment Company、Xinhai Guarantee Company provides guarantee。After the 100 million yuan loan involved in the case was in place,，Sanwei Real Estate Company repaid all the money directly to Xinhai Investment Company through the entrusted loan bank.。

therefore，Xinhai Investment Company、Xinhai Guarantee Company was fully aware of the fact that the main contract involved in the case was named financial lease and was actually an inter-enterprise loan.，There is no fraud in Sanwei Real Estate Company。three、Xinhai Investment Company、Xinhai Guarantee Company shall bear joint and several guarantee liability for the changed Supplementary Agreement and the mediation agreement reached in the lawsuit。

The "Supplementary Agreement" signed by Sanwei Real Estate Company and Cathay Leasing Company only extended the term of the main contract，And the repayment period after the extension does not exceed that of Xinhai Investment Company、The guarantee period promised by Xinhai Guarantee Company；Mediation opinions reached between Sanwei Real Estate Company and Cathay Leasing Company during the first instance litigation of this case，Greatly reduced the interest payable by Sanwei Real Estate Company，Xinhai Investment Co., Ltd. has also been relieved accordingly.、Guarantee liability of Xinhai Guarantee Company。

According to the relevant provisions of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of the People's Republic of China"，Xinhai Investment Company、Xinhai Guarantee Company should still bear joint and several guarantee liability for this。To sum up，Requesting the second instance to reject the appeal，Uphold the original verdict。Defendant in the original trial Zhang Hui、Zhang Hao did not submit written defense comments。In addition to confirming the facts found in the first instance, this court，Also find out：Xinhai Investment Company and Sanwei Real Estate Company already had a business relationship before the cooperation involved in the case。

2010年7月12日，Xinhai Investment Company entrusted Qilu Bank Co., Ltd. Jinan Chengxi Branch to issue an entrusted loan of 100 million yuan to Sanwei Real Estate Company，The loan period is from July 12, 2010 to July 12, 2011。2011年7月12日，Cathay Leasing Company, in accordance with the "Financial Lease Contract"，Transfer 100 million yuan to the account of Sanwei Real Estate Company。

same day，Sanwei Real Estate Company returned the above-mentioned 100 million yuan entrusted loan to Xinhai Investment Company。This court (Supreme People's Court) believes that：The focus of the dispute in the second instance of this case is：one、The nature and validity of the "Financial Lease Contract" involved in the case；two、The case involves the validity of the "Guarantee Contract" and Xinhai Investment Company、The scope of guarantee liability assumed by Xinhai Guarantee Company。

one、Regarding the nature and validity of the "Financial Lease Contract" involved in the case, according to the provisions of Article 237 of the "Contract Law of the People's Republic of China"，Compared with other similar contracts, financial lease contracts have the following characteristics:：First, it usually involves the three parties involved in the contract (i.e. the lessor).、lessee、seller) and consists of two contracts (i.e., the financial lease contract between the lessor and the lessee and the sales contract signed between the lessor and the seller for the leased property)；Second, the lessor purchases the leased property based on the lessee’s choice of the seller and the leased property.；Third, the ownership of the leased object belongs to the lessor during the lease period.，The leased property acts as a property right security；Fourth, the composition of rent not only includes the purchase price of the leased property，Also includes the lessor’s cost of capital、need

cost

and reasonable profits；Fifth, after the lease expires, the ownership of the leased object shall be determined by the agreement between the parties.。

It can be seen from the above characteristics，Financial leasing transactions have the dual attributes of financing and property financing，indispensable。If there is no actual leased property or the ownership of the leased property has not been transferred from the seller to the lessor, or the value of the leased property is obviously low, it cannot serve as a guarantee for the lease claim.，It should be determined that this type of financial lease contract does not have the property of financing property，Only empty funds，It is actually a loan in the name of financial leasing.，It should be a loan contract。

The "Financial Lease Contract" involved in this case is a real estate sale and leaseback business，The seller and lessee are both Sanwei Real Estate Company，The leasing property is 137 units of commercial housing under construction by Sanwei Real Estate Company.。

before the contract is concluded，The leased property has been identified by the relevant administrative departments as an illegal building constructed beyond the planned limit.；during the rental period，This project has not obtained pre-sale permission for commercial housing.，Therefore, the ownership of the commercial house involved in the case (i.e., the leased property) cannot be transferred from the seller, Sanwei Real Estate Company, to the lessor, Cathay Leasing Company.。

The actual legal relationship arising from this is，Cathay Leasing Company serves as the nominal buyer and lessor of commercial housing.，Does not enjoy ownership of the leased property，As a professional financial leasing company，He should also be aware that the ownership of the leased property involved in the case cannot be transferred.，Therefore, its true intention is not financial leasing.，Rather, it is a loan item；Sanwei Real Estate Company is the owner of the leased property，Although named "lessee"，But it is actually impossible to enter into a lease relationship with the property that you own，It only received NT$100 million from Cathay Leasing Company in the name of the seller.，and pay interest as stipulated in the contract，Its true intention is not sale and leaseback.，But borrow。

It can be seen from this，The case involves financial leasing transactions，only financing，no melt，The true expression of intention between the two parties is called financial lease，Actually a legal relationship for loan。In accordance with the provisions of Article 1 of the "Interpretations of the Supreme People's Court on Issues Applicable in the Trial of Financial Lease Contract Disputes"，The contract involved in the case should be recognized as a loan contract。

The court of first instance determined that the nature of the "Financial Lease Contract" involved in the case was called a financial lease and was actually an inter-enterprise loan contract.，Qualitatively accurate，This court upholds it in accordance with the law。The nature of the main contract involved in the case is an inter-enterprise loan contract，Therefore, the validity of the contract should be judged based on the inter-enterprise loan contract，and then determine the rights and obligations of the parties。

Cathay Leasing Company serves as a pilot enterprise for domestic financial leasing business，Although not qualified to grant loans，However, there is no evidence that its main business or main source of profit is the granting of loans.。The inter-enterprise loan involved in the case between Cathay Leasing Company and Sanwei Real Estate Company was the true expression of intention of both parties.，and does not violate the law、Prohibitive provisions of administrative regulations，The first-instance determination that the main contract involved in the case did not comply with the invalidity of the loan contract was not inappropriate.，This Court upholds this。

Xinhai Investment Company、Xinhai Guarantee Company’s appeal regarding the invalidity of the main contract involved in the case cannot be established，This court rejected it according to law。two、The case involves the validity of the "Guarantee Contract" and Xinhai Investment Company、The scope of guarantee liability that Xinhai Guarantee Company shall bear is under the main contract involved in the case.，Xinhai Investment Company、Xinhai Guarantee Company and Cathay Leasing Company signed a "Guarantee Contract" to assume joint and several guarantee responsibilities.。

Cathay Pacific Leasing Co., Ltd. stamped the official seal of the company and the name of the legal representative on the "Guarantee Contract"，The legal representative's name and seal can be regarded as a signature act，Xinhai Investment Company、Xinhai Guarantee Company’s appeal claim that the contract was not effective merely because the contract was not signed by the legal representative of Cathay Leasing Company lacked legal basis.，This court does not support。

Xinhai Investment Company、Xinhai Guarantee Company appealed，Its true intention when signing the contract is to provide guarantee for a valid financial lease contract rather than a loan contract.，The Guarantee Contract involved in the case was invalid due to lack of true expression of intention.；Sanwei Real Estate Company and Cathay Leasing Company deliberately concealed the fact that the leased property involved in the case was an illegal building，Fraudulent guarantee behavior，The guarantor shall not bear guarantee liability。

After investigation，Xinhai Investment Company had a business relationship with Sanwei Real Estate Company regarding the real estate project involved before Cathay Leasing Company，Moreover, Sanwei Real Estate Company used the loan involved in the case to repay its debt to Xinhai Investment Company.，Therefore, Xinhai Investment Company should have been fully aware of the fact that the leased property involved in the case was an illegal construction when providing the guarantee.；Xinhai Investment Company、Xinhai Guarantee Company as a professional investment、guarantee company，Before signing the "Guarantee Contract", you should also be aware of the actual nature of the financing involved in the case, which is called a financial lease but is actually a loan.。

Accordingly，The first instance found that the "Guarantee Contract" involved in the case belonged to Xinhai Investment Company、The factual basis for Xinhai Guarantee Company’s true intention is sufficient，should be maintained。The main contract involved in the case is valid，Xinhai Investment Company、The "Guarantee Contract" signed by Xinhai Guarantee Company and Cathay Leasing Company is also a valid contract。Cathay Leasing Company claimed to exercise the security right during the guarantee period，Xinhai Investment Company、Xinhai Guarantee Company, as the guarantor, shall bear the guarantee liability according to the agreement。

Xinhai Investment Company、Xinhai Guarantee Company’s statement on the invalidity of the Guarantee Contract involved in the case、The appeal claim that Cathay Leasing Company and Sanwei Real Estate Company fraudulently obtained guarantees cannot be established according to law.，This court rejected this。According to the scope of guarantee agreed in the Guarantee Contract involved in the case，Xinhai Investment Company、Xinhai Guarantee Company assumes joint and several liability for all debts of Cathay Leasing Company borne by Sanwei Real Estate Company under the main contract, namely the "Financial Lease Contract"。

Since the leased property involved in the case has not yet obtained a pre-sale permit，Cathay Leasing Co. cannot obtain ownership of the leased property，Furthermore, it is impossible to possess and dispose of the property involved in the case.。So Xinhai Investment Company、Xinhai Guarantee Company’s appeal against Cathay Leasing Company for allowing Sanwei Real Estate Company to arbitrarily dispose of the property involved in the case and not being liable for the losses incurred lacks any factual basis.，cannot be established。

During the first instance of this case，Cathay Leasing Company reaches agreement with Sanwei Real Estate Company，Cathay Leasing Company waives contract liquidated damages payable by Sanwei Real Estate Company，and lowered the principal and interest calculation standards。

Although the content of the agreement has not been obtained from the guarantor Xinhai Investment Company、Xinhai Guarantee Company’s consent，But the agreement actually relieves the debtor's debt and the guarantor's guarantee liability，According to the provisions of Article 30, Paragraph 1 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of the People's Republic of China"，Xinhai Investment Company、Xinhai Guarantee Company shall bear the guarantee liability according to the debt amount determined in the above agreement。

The first-instance judgment accordingly determined that Xinhai Investment Company、Xinhai Guarantee Company’s Guarantee Liability Scope，Sufficient legal basis，should be maintained。Judgment result of the Supreme People's Court of second instance：To sum up，The first-instance trial procedure is legal，Make sure the facts are clear，Applicable law is correct。This court decided after discussion and decision by the Civil Administrative Committee of the Adjudication Committee，In accordance with the provisions of Article 170, Paragraph 1, Item 1 of the Civil Procedure Law of the People's Republic of China，The verdict is as follows：appeal dismissed，Uphold the original verdict。

The first-instance case acceptance fee is 815,022 yuan，Implemented in accordance with the first instance judgment。The second instance case acceptance fee is 1,630,044 yuan，By Shandong Xinhai Investment Co., Ltd.、Shandong Xinhai Guarantee Co., Ltd. each bears 815,022 yuan。This judgment is final。Tips from attorney Xiaowen from Jinlitigation Circle：Once the court determines that "what is called a financial lease is actually a loan"，What are the consequences for financial leasing companies?

one、Loss of the property security function of the leased property，Unable to take back the leased property or receive priority in the auction of the leased property。two、Engaged in a dispute over the validity of loan contracts between enterprises，thus affecting the validity of the guarantee contract，There is a possibility that the guarantor will be released from guarantee and will not be liable for the guarantee.。three、therefore，Financial leasing business，Especially in the sale and leaseback business，Attention must be paid to the impact of the leased property on the validity of the financial lease contract，Should we focus on reviewing the condition of the leased property before lending money?

1. Does the leased property exist?
2. Is the leased property suitable? For example：Is it expendable? Is it non-refundable? Is it attached to other property and inseparable?
3. In leaseback mode，Does the lessee enjoy the initial ownership and disposal rights of the leased property?
4. Has the ownership of the leased property been transferred to the lessor?
5. Is the value of the leased property significantly lower than the financing amount?
6. Is there any mortgage on the leased property?、Rights encumbrances such as pledge?
7. Who is the actual user of the leased property?
8. Are rental properties clearly marked?
9. Has the leased property been registered and publicized in the financial leasing system?

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