An in-depth explanation of the bona fide acquisition of financial leases (recommended useful information)

An in-depth explanation of the bona fide acquisition of financial lease items (recommended useful information). Since most of the subject matter of financial leases are movables such as machinery and equipment,，Possessed and used by the lessee，Lessees can easily transfer equipment or use it for recurring financing，Such as selling or mortgaging，Most of the time the buyer or mortgagee will claim that it was acquired in good faith.，There are numerous similar cases in judicial practice，Therefore, how to study the disclosure of subject matter?，It is very important to achieve legal effects against bona fide third parties。

Part one、For the basic provisions of acquisition in good faith, let’s first look at the provisions of the Property Law.：Article 106 of the Property Law of the People's Republic of China：The person without the right to dispose of the property transfers the real estate or movable property to the transferee，The owner has the right to recover；Unless otherwise provided by law，Meet the following circumstances，The transferee acquires the ownership of the real estate or movable property：

1. The transferee acted in good faith when transferring the real estate or movable property；
2. Transfer at a reasonable price；
3. The transferred real estate or movable property that should be registered in accordance with legal provisions has been registered，Those that do not need to be registered have been delivered to the transferee.。

The transferee obtains the ownership of real estate or movable property in accordance with the provisions of the preceding paragraph.，The original owner has the right to request compensation for losses from the person without right of distribution。The party has acquired other property rights in good faith，Refer to the provisions of the previous two paragraphs。Article 106 of the Property Law stipulates the constituent elements of acquisition in good faith.，include：

1. No fault of the third party，i.e. "goodwill"；
2. Reasonable transfer price；
3. complete delivery。

The components of acquisition in good faith are relatively simple,This article will not explain in detail,Readers can study relevant articles by themselves。

Article 106 of the Property Law only provides general provisions on acquisition in good faith.，For applicable needs，Later, in the "Supreme People's Court's Notice on the Application of<中华人民共和国物权法>The Interpretation of Certain Issues (I) (hereinafter referred to as the Interpretation I of the Property Law) also provides detailed provisions on acquisition in good faith.，include：one、Article 15 of the Judicial Interpretation 1 of the Property Law provides that the burden of proof is not in good faith：When the transferee transfers real estate or personal property，I don’t know that the transferor has no right to distribute，without gross negligence，The assignee should be deemed to be in good faith。

The real right holder claims that the transferee does not act in good faith，Should bear the burden of proof。According to the above provisions，The original right holder must prove that the transferee is not in good faith，15The first paragraph of Article stipulates the determination of good faith. The second paragraph stipulates that the burden of proof of non-good faith shall be borne by the real right holder.，It can be seen that，In financial lease contract，The witness is the lessor，Because the lessor is the owner of the subject property，The real right holder。

two、Article 17 of the Judicial Interpretation of the Property Law on Determination of Gross Negligence：When the transferee transfers movable property，Transaction object、The place or timing is inconsistent with trading habits，The transferee should be found to have committed gross negligence。

According to the above provisions，object to be traded、Whether the place or timing is consistent with trading practices and whether the transferee has committed gross negligence，This provision is also general，In trial practice, the court determines，Gives the court greater discretion，The author thinks，Such a provision is more in line with the actual trial practice.，Real-life transactions vary widely，different industries、There are big differences between different transactions，At present, it is impossible to be too detailed，It can be left to the judicial interpretation of each department’s laws to make their own explanations.，For example, in a financial lease contract，Article 9 of the Judicial Interpretation of Financial Leasing Contracts stipulates the good faith acquisition in financial leasing contracts.。

three、Article 18 of the Judicial Interpretation of the Property Law of the People's Republic of China：The term “when the transferee transfers the real estate or movable property” as mentioned in Article 106, Paragraph 1, Item 1 of the Property Law refers to the time when the transfer registration of the real estate property rights or the delivery of the movable property is completed in accordance with the law.。

The party delivers the movable property in the manner prescribed in Article 25 of the Property Law，The legal act of transferring movables takes effect when the movables are delivered；The party delivers the movable property in the manner prescribed in Article 26 of the Property Law，The agreement between the transferor and the transferee regarding the transfer of the right to claim for the return of the original property takes effect when the movables are delivered.。law on real estate、There are other provisions for the establishment of property rights in animals，Whether the right holder is in good faith shall be determined according to the time prescribed by law。

therefore，Except for laws regarding real estate、Unless there are other provisions on the establishment of property rights in animals,，Generally, the time point for determining good faith is “the time of delivery”，This is easier to understand。

Four、Other references for the determination of good faith The above are the provisions for the determination of "good faith"，including burden of proof，time etc.，Has certain guiding significance，besides，The author thinks，Determine whether it is in good faith，There should be two other important reference standards:：

1. Is the form complete?，That is to say, it meets the basic constituent requirements and formal requirements.，For example, are the materials available?、Is the procedure legal?、Whether the procedure is proper, etc.；
2. beyond reasonable doubt，special circumstances，Even if the lessor has no direct evidence to prove，If it cannot be ruled out beyond reasonable doubt，Determination can be made based on the overall circumstances of the case, including indirect evidence.，Determining the relevance of reasonable doubt、importance，To determine whether it was acquired in good faith。

five、Reasonable price determination, Article 19 of Judicial Interpretation 1 of the Property Law："Reasonable price" as mentioned in the second item of Article 106, Paragraph 1 of the Property Law，should be based on the nature of the subject matter transferred、Specific information such as quantity and payment method，Comprehensive determination with reference to factors such as market price at the place of transaction and trading habits at the time of transfer。

therefore，A reasonable price should be based on the nature of the subject matter of the transfer、Specific information such as quantity and payment method，Comprehensive determination with reference to factors such as market price at the place of transaction and trading habits at the time of transfer，This article is also a general provision，The author believes that we can refer to the provisions on "obviously unreasonable prices" in Article 19 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (2)"："For the 'obviously unreasonable low price' stipulated in Article 74 of the Contract Law，The people's court shall judge based on the price of general operators in the local area of ​​transaction.，And refer to the price department guide price or market transaction price at the place of transaction at the time of transaction.，Confirm after comprehensive consideration combined with other relevant factors。

The transfer price does not reach 70% of the guide price at the place of transaction or the market transaction price at the time of the transaction.，Generally can be regarded as obviously unreasonable low price；The transfer price is 30% higher than the local guide price or market transaction price.，Generally can be regarded as obviously unreasonable high price。"That is, whether it exceeds ±30% is used as a reference for judgment.。

six、Regarding the practice of mortgage registration of leased property，The lessee assigns the leased property to a third party，Such as mortgage，Most will handle mortgage registration，According to Article 189 of the Property Law：enterprise、Individual industrial and commercial households、Agricultural producers and operators mortgage the chattels specified in Article 181 of this Law，Registration should be made with the industrial and commercial administration department at the place where the mortgagor is domiciled.。The mortgage right is established when the mortgage contract takes effect.；without registration，No confrontation with bona fide third parties。

Mortgage in accordance with Article 181 of this Law，shall not fight against a buyer who has paid a reasonable price and obtained the mortgaged property in normal business activities。therefore，The effect of mortgage registration is "confrontational effect"，It is not whether the mortgage contract is in effect、Components of whether the mortgage right is established，The chattel mortgage right is established when the mortgage contract takes effect.，Mortgage registration is only used against bona fide third parties，without registration，No confrontation with bona fide third parties。

The above are some provisions of the Property Law and its judicial interpretations on acquisition in good faith.，It has great guiding significance for trial practice，In the transaction of financial leasing contract，There are some changes in whether the subject matter of a financial lease is subject to the provisions obtained in good faith.，In 1996, the Supreme People's Court promulgated and implemented the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Financial Lease Contract Dispute Cases" (Fa Fa [1996] No. 19), which stipulates that the lessee's act of disposing of the leased property without the lessor's consent is invalid.，The details are as follows："Before the lease contract is completed,，Lessee without lessor’s consent，Mortgage the leased property、transfer、Sublease or invest in shares，its action is invalid，The lessor has the right to take back the leased property，and

Require

Lessee compensates for losses。

Loss caused to a third party due to the lessee’s invalid behavior，The third party has the right

Require

Tenant compensation。"This law came into effect on the date of the "Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Financial Lease Contract Dispute Cases"，That will be abolished on March 1, 2014。

It can be seen that，In the early financial lease contract disputes，The subject matter of a financial lease does not constitute acquisition in good faith.，Although the Contract Law promulgated and implemented subsequently had special provisions on financial leasing contracts,，However, there is no provision on the bona fide acquisition of ownership of the leased property and other property rights.，It was not until the 2014 "Interpretation of the Supreme People's Court on the Applicable Legal Issues in the Trial of Financial Lease Contract Dispute Cases" that the issue of good faith acquisition of the leased property was stipulated。

part two、Confrontation provisions obtained in good faith will first look at the specific provisions.：Article 9 of the "Interpretation of the Supreme People's Court on the Applicable Legal Issues in the Trial of Financial Lease Contract Dispute Cases"：The lessee or the actual user of the leased property，Transferring the leased property or establishing other property rights in the leased property without the consent of the lessor，A third party obtains ownership or other property rights of the leased property in accordance with Article 106 of the Property Law.，The lessor’s assertion of the third party’s human rights is untenable，The people's court does not support，Except for one of the following circumstances：

1. The lessor has marked the leased property in a conspicuous place，The third party knows or should know that the property is a leased property when dealing with the lessee；
2. The lessor authorizes the lessee to mortgage the leased property to the lessor and register the mortgage right with the registration authority in accordance with the law.；
3. When a third party trades with the lessee，Not in accordance with the law、Administrative regulations、Conduct inquiries on financial leasing transactions in corresponding institutions in accordance with the regulations of industry or regional competent authorities.；
4. Other circumstances where the lessor has evidence proving that the third party knows or should know that the subject matter of the transaction is the leased property。

In accordance with the provisions of Article 9 of the Judicial Interpretation of Financial Leasing Contracts，In principle, the leased property can also be acquired in good faith.，But it also stipulates the circumstances against the acquisition in good faith.，That is, the financial lease lease property can be acquired in good faith after being publicized.，Specifically，Mainly include the following situations：one、Mark the leased property in a conspicuous place，And the third party knew or should have known that the property was a leased property during the transaction.，Basically every leasing company will produce a special label for the subject matter.，Basic information about the lessor is stated above，include name、Contact information, etc.，The advantage of labeling is that it is simple and easy，The disadvantage is：

1. due to tenant resistance，In most cases, there will be no markings on the rental property.，
2. over time，The logo is easily corroded, peeled off or damaged by humans.，Limited retention time，
3. There is also a certain degree of difficulty in providing evidence，Even if it is kept until the dispute is sent，The tenant can also remove it at any time，Therefore, the effect of this provision is not particularly obvious in practice.。

two、Mortgage registration is usually done at the industrial and commercial administration department.，About setting up a mortgage on a property that you own，There is some controversy in theory，In practice，Many courts have also questioned this，According to Article 77 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of the People's Republic of China：“The same property is mortgaged to more than two creditors，When the prior mortgage right and the ownership of the property belong to one person，The owner of the property may use his mortgage right to contest the subsequent mortgage right.。

"It can be seen from this，The law is positive that the owner and the mortgagee are the same person.，Then there is no legal obstacle for the lessor to register the leased property as a mortgage.。In practice，The disadvantage of mortgage registration is that the procedures are complicated，The advantage is：

1. The industrial and commercial administrative department has greater authority in registration；
2. Easy to query；
3. It is easier to prove。Therefore, it is currently a common practice to register mortgages for leased properties.。

three、Corresponding agency registration. Currently, there are two financial leasing transaction registration and inquiry systems in my country.，First, it was established in 2009 with the approval of the People’s Bank of China，Financial leasing registration and publicity system developed and operated by the Credit Information Center of the People's Bank of China，i.e. zhongdeng.com，The second is the financial leasing business registration system developed and established by the Ministry of Commerce in 2013.，This system is mainly aimed at non-financial leasing companies。

For now，Zhongdeng.com assumes the main leasing property registration and inquiry function and has been widely recognized by commercial banks and leasing property companies.，However, since there is no legal or judicial interpretation of the，Therefore its legal effect is limited，Except for Tianjin，On November 11, 2011, the Office of the Tianjin Higher People’s Court issued the “Notice of the Tianjin Higher People’s Court on the Guiding Opinions on the Trial of Cases Concerning Disputes over the Ownership of Financial Leasing Property (Trial)”.，The lessor should register in the "Financial Lease Registration and Publicity System of the Credit Information Center of the People's Bank of China (i.e. Zhongdeng.com)"，No action against bona fide third parties without registration，If the third party fails to conduct inquiries on Zhongden.com, it will be deemed that it has failed to fulfill its duty of care and does not constitute good faith.。

The above is only implemented within Tianjin，According to the Financial Office of Tianjin Municipal People’s Government、People's Bank of China Tianjin Branch、Tianjin Municipal Commerce Commission、Tianjin Financial Office [2011] No. 87 "Notice on Carrying out Financing Lease Registration and Inquiry" jointly issued by the Tianjin Supervision Bureau of the China Banking Regulatory Commission，The “third party” mentioned above is specific，i.e. bank、Financial asset management company、trust company、finance company、car finance company、consumer finance company、Financial leasing company、Foreign-invested financial leasing company、Domestic financial leasing pilot enterprises、pawn shop、small loan company、Financing guarantee company。

To sum up，The advantages of registering with the appropriate agency are：

1. Simple and easy；
2. Has a certain publicity effect；
3. It is easier to prove；The disadvantage is：
4. lack of authority，There is no mandatory effect in the application of law，The identification results are different；
5. specialized agency，Inaccessible to ordinary people；
6. Even in Tianjin，The scope of confrontation is also relatively limited，Only for specialized institutions。

Four、In other cases, this is a blanket clause，To prevent omissions，Comprehensive analysis and application can be made based on specific cases。part three、Conclusions and suggestions can be seen from the above，In principle, a third party can obtain the property rights related to the subject matter of the financial lease through good faith.，However, the law also provides specific provisions for combating bona fide acquisitions.。

Combined with trial practice，The author reviewed numerous cases and had in-depth discussions with people in the financial leasing industry.，Based on the above analysis，A more practical approach at present is to apply for mortgage registration，It is also a common practice at present，Of course, you can also combine multiple methods at the same time，It is recommended to choose at least one or more of the above methods for publicity.，To protect the ownership of the leased property and against bona fide third parties。

Part 4、Related cases case one：

1. Suiyuefajinminchuzi No. 1507
2. Gui Zhong Fa Jin Min Zhong Zi Case No. 716 II：
3. The above cases of Shao Yu Shang Chu Zi No. 913 are all typical cases regarding the good faith acquisition of leased property.，Readers who are interested can consult relevant materials on their own，This article will not elaborate further。author：Source of lawyer Xiong Zhiqun：Shang Hai Ludun

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