论融资租赁交易的法律构造

融资租赁交易是以出租人和承租人为当事人的两方交易,三方结构安排不利于厘清交易当事人之间的权利义务,也与合同的相对性原则有违.融资租赁交易的权利构造可以设计成“所有权+用益物权”模式,也可以设计成“所有权+租赁权”模式.这两种模式都体现了所有与利用的分离,但就承租人对租赁物的利用而言,前者属于物权性利用,后者属于债权性利用.两种建构均须公示租赁物之上的权利负担和物权变动,只不过“所有权+用益物权”模式中,公示的是租赁物上的他物权,间接公示租赁物上的所有权;“所有权+租赁权”模式中,公示的是租赁物的所有权.但这一公示又不同于不动产权利的公示,仅具对抗效力,相关制度应在“声明登记”模式之下去设计.

The Legal Construction of Financial Leasing Transactions

A financial leasing transaction is characterized as a two - party transaction between the lessor and the les- see. The rights and duties of the concerning parties are difficult to be clarified and the privity of contract cannot be found in tripartite leasing arrangements. The diversity of the rights on the leased property in a financial leasing transaction can be constructed as ownership vs. usufruct or ownership vs. leasehold. The two modes both separate use rights from ownership. However, the former shows the proprietary use rights and the latter the obligationary use rights. It is both necessary to per- fect the encumbrances and transfer of real rights in the two modes. However, it is the chattle usufruct of the leased property that is perfected in the ownership vs. usufruct mode. While it is the ownership of the leased property that is perfected in the ownership vs. leasehold mode. The improvement of financial lease is different from the publicity of real estate, and is only effective against the third party. Therefore the registry system shall be constructed as notice filing.