Port communicationDetermining the nature of the contract using real estate as a financial lease item (recommended useful information!) Currently，There are three forms of real estate financing leasing that are more common in the domestic leasing industry.：One is direct rental，That is, the financial leasing company acts as the lessor and uses its own funds to purchase the corresponding property on behalf of the lessee.，Then rent it to the lessee，Collect rent from tenants regularly。
After the lease contract expires，According to the prior agreement between the financial leasing company and the lessee，The property can be repossessed by the leasing company，The lessee may also obtain ownership of the home by paying a nominal consideration to the leasing company.。The second is the sale-leaseback model，That is, the developer sells the property to the leasing company，Then lease the asset back from the leasing company，The developer is both the seller and the lessee，The leasing company is both the buyer and the lessor.。
In this way, developers not only revitalize fixed assets，Got a financing，and still has possession of the property、Access and control。After the lease expires，The lessee repurchases the subject property from the leasing company at a symbolic ultra-low residual value.。This is currently the most common real estate financing leasing model.。The third is indirect leasing。
That is, mechanical and electrical equipment in real estate projects、Pipeline is a leasehold property，Or use the production equipment of a production enterprise as a lease item，Carry out sale and leaseback business，Indirectly achieve the purpose of financing real estate projects。Issues regarding the identification of the contract nature of a "financial lease contract" in which real estate is the leased object，More controversial。one view is that，A financial lease contract using real estate or other immovable property as the leased object is invalid。The reason is：(1) The substantive legal relationship is inconsistent with financial leasing。
Real estate finance lease contract，The lessee is not the user of the real estate，But a real estate developer、builder，It is significantly different from that in a financial lease contract where the lessee is the user of the leased property.，The essence of real estate financing leasing is real estate mortgage lending。(2) Financial leasing of real estate projects deviates from the functions of financial leasing。From the perspective of the creation and function of financial leasing contracts，The subject matter of financial leasing is mainly the production and operation equipment of the enterprise.。
therefore，Financial leasing is also used as an important legal tool for financial capital to support the real economy.。But in our country's practice，There have been a large number of financial leasing contracts with real estate as the leased object.，The real estate used as a leasehold property is not a corporate factory building，It is a real estate project developed by a developer or an affordable housing provided by a local government.。Determining that such leases constitute finance leases，In fact, it is equivalent to emptying the country's real estate control policy.，It also goes against the macro policy of financial capital supporting the real economy.。
(3) The legal rules of financial leasing contracts do not apply to real estate financial leasing contract disputes。as generally speaking，The rental setting of financial leasing has a corresponding relationship with the depreciation of equipment.，Expiration of lease，Most of the equipment has only residual value。
After the real estate project expires，The leased property is not the residual value，Rather, it is reflected in substantial value-added，therefore，Relevant rent setting in legal rules of financial lease contracts、Calculation of residual value of leased property、Rules such as liquidation of leased property do not apply to real estate finance leasing。
(4) From a legislative perspective，The International Institute for the Unification of Private Law's "International Financial Leasing Convention" describes the scope of the leased property as "factory".、Capital goods or other equipment (equipment)”，Does not include real estate，Article 2 of the "Financial Leasing Law (Draft)" (Third Draft for Comments) drafted by the Financial and Economic Committee of the National People's Congress also limits the leased items applicable to financial leasing transactions to non-consumable movables such as machinery and equipment.。
Another view is that，Contracts using real estate and other real estate as lease items are legal and valid，It should be determined that the relationship constitutes a financial lease contract。
The reason is：(1) The China Banking Regulatory Commission as a regulatory agency、The Ministry of Commerce has not restricted real estate leasing，There is no legislation prohibiting real estate leasing in foreign legislation or international conventions.；(2) Real estate financing leasing is the safest lease property due to its sound registration and publicity system for leased properties.，It is also the main source of business and profit for financial leasing companies.，If the real estate finance lease is determined to be invalid，will bring huge financial risks。
(3) "Ministry of Finance、State Administration of Taxation on property tax、Article 3 of the "Notice on Issues Related to Urban Land Use Tax" (Finance and Taxation [2009] No. 128) specifically stipulates the property tax issues for financial leasing properties.，clear："Financial leased property，The lessee shall pay property tax based on the residual value of the property starting from the month following the start date of the financial lease contract.。
The contract does not specify a start date，The lessee shall pay property tax based on the residual value of the property starting from the month after the contract is signed.”，It is clarified that the property can be used for financial leasing。"Ministry of Finance、Article 1 of the Notice of the State Administration of Taxation on Deed Tax Policies for Enterprises to Financing Through Sale and Leaseback (Caishui [2012] No. 82)：“Carry out sale and leaseback business for financial leasing companies，Assume the tenant's house、land ownership，Tax according to regulations。
Expiration of sale and leaseback contract，Tenant repurchases original house、land ownership，Exemption from deed tax”，It is also clarified that real estate can be used for financial leasing。Explain that my country clearly recognizes real estate financial leasing。
(4) From the perspective of international legislative trends，Article 2 of the International Institute for the Unification of Private Law's Model Law on Lease，Leased property refers to the property owned by the lessee that is used for business activities，including real estate、capital goods、equipment、future property，specific finished product、Factory buildings and draft animals (including unborn draft animals)，Also includes real estate。
The third view is that，A contract that uses real estate and other immovable property as a lease item，It is not a financial lease contract in itself，But the contract itself is still valid。
The main reasons are basically consistent with the first view，But think，If such a contract does not directly violate Article 52 of the Contract Law, the contract will be invalid.，The contract should still be deemed valid，But as far as the judicial treatment of contracts is concerned，It should be determined that it does not constitute a financial lease contract relationship.，and shall be based on the actual contractual relationship，Such as loan contract relationship、Lease contract relationship and other substantive legal relationships to determine its legal application and the rights and obligations between the parties。
In the process of drafting judicial interpretations，We have set out two options of approval and denial on whether real estate and other real estate can be used as leasehold items in financial leases.，Solicit opinions from all walks of life。Judging from the feedback，Relevant regulatory authorities、Administrative law enforcement department、The legislative branch also has inconsistent views on this issue，The financial leasing industry, especially financial leasing companies, have also expressed strong opposition to the negative view of real estate financial leasing.。
In view of this，We have not explicitly denied the validity of "financial lease contracts" in which real estate is leased.，But whether such a contract constitutes a financial leasing contract relationship，The determination should still be made based on the provisions of Article 237 of the Contract Law and the circumstances of individual cases.。Specifically，Lease items include corporate factories、Financial leasing contracts including equipment，We tend to believe that the relationship constitutes a financial lease contract。
The reason is，This type of leased property complies with the regulations of the China Banking Regulatory Commission and the Ministry of Commerce regarding the leased property as fixed assets.，Reflecting the characteristics of financial leasing that combines financing and property financing，It is also in line with the industrial policy of supporting the real economy through financial leasing.。
From the perspective of setting up the relationship between rights and obligations，The company's factory building、Ownership of the equipment transfers to the lessor，And the financial lease contract relationship established on this basis complies with the provisions of Article 237 of the Contract Law regarding the rights and obligations of the financial lease contract.。
For commercial real estate，Its lessee has financing needs，Obtain the right to use commercial real estate through a financial lease contract，and actually possess and use the leased property，The lessor is the owner of the leased property，On the premise that its property rights security is guaranteed，Provide financing facilities，does not violate the mandatory provisions of laws and regulations，It is also not the adjustment object and target of the government’s real estate control policy.，Therefore, the nature and validity of the financial lease contract should not be denied because the leased property is real estate.。
Use residential commercial housing projects under construction as leasehold properties，Real estate developer as lessee、Is the "financial lease contract" in which the leasing company is the lessor a financial lease contract?，We tend to conclude that it does not constitute a financial lease contract relationship，The main reason is：(1) Real estate projects under construction do not yet have legal ownership，Therefore, the lessor has not actually obtained ownership of the real estate project.，This is contrary to the feature that the lessor enjoys ownership of the leased property during the lease period.。
(2) Real estate developers as lessees，Not the actual user of the leased property，Its leasing real estate projects under construction，nor for the purpose of using the leased property，Instead, obtain loan financing through real estate projects。(3) Real estate under construction is not a fixed asset in the substantial sense.。"Administrative Measures for Financial Leasing Companies" limits leased assets to fixed assets，But fixed assets is not a legal term，What exactly are fixed assets?，The recognition standards are also inconsistent。
Article 3 of "Accounting Standards for Business Enterprises No. 4 - Fixed Assets"：Fixed assets are goods used to produce、Provide labor services、held for leasing or operation and management、Tangible assets with a useful life exceeding one fiscal year。
There is a view that，Fixed assets must meet the following conditions：①Owned by the enterprise for use in the production or supply of goods and services、rent to others，or held for management purposes；②Purchased or constructed for continuous use；③Not intended to be sold in the normal course of business。
Another view is that，Fixed assets are the symmetry of current assets，Refers to the service life of more than one year，The unit value is above the specified standard，Assets that retain their original physical form during use，including houses and buildings、Machinery and equipment、transportation equipment、Tools, appliances, etc.。Determine whether something is a fixed asset，does not depend on its physical properties，rather it depends on the particular way it performs its functions in the production process。
like，A locomotive of the same model，In the motorcycle factory is the product，In railway transportation enterprises, it is fixed assets。
Fixed assets have the following characteristics：①During the use of fixed assets，Its physical form does not constitute the entity of the product，But through its continuous role in the product formation process，Let its value part gradually penetrate into the product；②An asset that exists in material form，And maintain the original physical form during use；③The high value of labor materials that exist in material form，Different from low-value consumables。
There is a view that，Fixed assets are real estate，In fact, it is a misunderstanding of the concept of fixed assets。Determine whether something is a fixed asset，does not depend on its physical properties，rather it depends on the particular way it performs its functions in the production process。An important characteristic of fixed assets is that they are held for use rather than for sale or investment.。
Physical assets held for sale are inventories，Assets held for investment are short-term investments or long-term investments，therefore，The purpose of holding is different，The scope of fixed assets of each enterprise is also different.。For manufacturing companies，Factory buildings are fixed assets；For real estate development companies，Real estate projects under construction are for sale，instead of using，Therefore, it does not belong to fixed assets。
Fixed assets are labor tools or means，rather than being the object of labor，Its value is transformed into labor products through installments，The real estate projects under construction are precisely the objects of labor rather than the tools and means of labor.。(4) From the perspective of foreign practice，Although not all financial leasing of real estate is prohibited，But judging from the actual transaction volume，to developers、Government investment platform as lessee，There are also very few financial leasing transactions using real estate projects under construction as leasehold properties.。
Foreign countries do not exclude real estate from the subject matter of leases，Mainly because foreign real estate loan channels are smooth，And the financing cost is lower than that of financial leasing，Therefore, there is no need to resort to financial leasing.。therefore，Although the law does not prohibit financial leasing of real estate，However, financial lease contracts that actually use real estate as the subject matter are rare.。
From the perspective of administrative supervision，Issues regarding the scope of the leased property in financial leasing transactions，like，Can a leasing company use commercial housing as a commercial property?、Urban underground pipe network、Real estate such as roads as leasehold property，Should be identified and resolved by the administrative supervision department of the financial leasing industry。
On the premise that the administrative regulatory authorities have not made a clear position on this，If we use judicial interpretation，Limit the scope of the leased property，Not only is there no clear legal basis，and may also jeopardize the performance of a large number of existing contracts。
But from the perspective of the judicial trial of the People's Court，There is a contract in which such leased property or right is the leased property，Whether the rights and obligations of both parties can be determined in accordance with the provisions of the Contract Law on financial lease contracts and the provisions of this interpretation。
therefore，Although this judicial interpretation does not explicitly deny real estate financial leasing，However, the nature of the lease subject matter is still used as one of the factors to determine whether it constitutes a financial lease contract.，The People's Court shall determine the case based on specific cases.，While avoiding the public recognition of real estate financing leasing that leads to the overriding of real estate control policies,，Reduce the impact on existing real estate financing leasing business。In the practice of real estate financing leasing，Specific business operations are also different.。
like，Some lessors
Require
Clearly transfer the property to the lessor’s name，To protect the security function of the leased property；There are also leasing companies and developers who want to avoid paying a lot of taxes and fees on real estate transfers.，Instead of adopting a non-transfer operation method,，For untransferred，Because the legal relationship is inconsistent with the lessor’s ownership of the leased property，We tend to clearly determine that this type of real estate financing lease does not constitute a financial leasing contract relationship.。
There is a view that，sewage pipe network、Electric power overhead lines、Airports and stations need to be attached to the land，cement、papermaking、generate electricity、smelting、Precision machinery and other equipment are not removable，devices like these，The entire asset must be used as a finance lease。The overall assets include the house、Land and other real estate。If it is determined that the real estate cannot be used as a leasehold property，If the nature of the financial lease is inconsistent with。
we think，Equipment attached to real property，with real estate、There are significant differences between commercial buildings as rental properties，The former leases equipment，The latter leases real estate、Commercial housing itself，As stipulated in article 2 of the International Institute for the Unification of Private Law's Model Law on Lease，A leasehold does not cease to be a leasehold simply because it is attached to or embedded in real property。
therefore，append like this、A financial lease contract in which equipment built on real estate is used as a lease item，Still a financial lease contract。
But it should be noted that，To the lessor, such leased property，There may be a problem of weak property rights security function，In case of default by the lessee，Although the lessor can theoretically exercise the right of withdrawal，But it's not actually feasible，Or the value of the leased property will be basically lost after it is taken back.，The property rights protection function of financial leasing transactions is difficult to realize，The resulting risk of lessee default on the lessor is inevitable，The basic value of the transaction relationship in the financial lease contract has not been realized。
When identifying the financial lease contract relationship，It is also necessary to consider whether there is a corresponding relationship between the construction value of such equipment and the total rental amount.。However, this is an operational risk issue for financial leasing companies.，Issues regarding determining the nature of a financial lease contract that are not part of it。
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