The bona fide acquisition system of financial leasing industry

下面为大家整理一篇优秀的assignment代写范文- The bona fide acquisition system of financial leasing industry，供大家参考学习，这篇论文讨论了融资租赁行业的善意取得制度。善意取得亦称即时取得或瞬间取得，是指无权处分他人财产的占有人，在将财产不法转让给第三人以后，如果第三人在受让该财产时出于善意，就可以依法取得该财产的所有权。融资租赁是一个跨领域较大的行业，之所以融资租赁与善意取得出现交集，是由于出租人与善意第三人的利益出现了较大的冲突，这严重阻碍了融资租赁业的健康有序发展，也侧面反映出了善意取得制度法律法规的不完善。

Bona fide acquisition, also known as instant acquisition or instantaneous acquisition, refers to the possessor who has no right to dispose of the property of others. After illegally transferring the property to a third party, if the third party ACTS in good faith when receiving the property, it can acquire the ownership of the property according to law. Such, the droit that the transferee obtained property when acquiring this belongings to possess or register, and need not return to former droit person original content, former droit person also does not have authority to ask transferee to give return. Acquisition in good faith is a way of ownership acquisition, which aims to protect the interests of bona fide transferees and maintain the security and market order of transactions.

First, discuss the value basis of bona fide acquisition system. To some extent, the system of bona fide acquisition protects the interests of all and guarantees the security of ownership. Moreover, it focuses on protecting the interests of bona fide assignee, which is a system to balance the interests of ownership and bona fide assignee, and is conducive to maintaining the order and security of the trading market.

Discuss the theoretical basis of bona fide acquisition system. For the theoretical basis of its existence, it can be said that this is a matter of different opinions, most scholars have their own views. Generally speaking, it can be divided into the theory of acquisitive prescription, the theory of right appearance, the theory of law empowerment and the theory of possession effectiveness. Among them, the prescription of acquisition refers to the time and the passage of time as its constituent elements, while the bona fide acquisition system has no connection with time and the passage of time, so the prescription system and bona fide acquisition system are two independent systems. The appearance of right means that the possessor should be presumed to be the legal owner, so the transferee has the basis of trust. The power of law means that the possessor is empowered by law to dispose of the ownership of others. The effect of possession refers to the effect of possession after the transferee receives possession in good faith. In these several theories, most scholars admit the right shape theory.

The subject matter acquired in good faith is movable or immovable property that can freely circulate according to law. Article 106 of the property law clearly stipulates that bona fide acquisition can be applied to chattel and realty. The subject matter acquired in good faith must be property that can circulate freely according to law. If the circulation of the subject matter is prohibited or restricted by law, it is not applicable to the system of bona fide acquisition. Special property, such as money or bearer securities, is also not available in good faith because they are special property. Again for illegally obtained, such as robbery, theft from the currency, security holders can not obtain ownership. The bona fide acquisition system also does not apply to registered securities.

Where the assignor does not have the right to dispose of the property, it means that it has no right to transfer the property. Unauthorized transfer refers to the illegal transfer of a person's property that is legally possessed by another person, such as a borrower, custodian, lessee, etc., which sells another person's property; Another example is that the owner has transferred his ownership to someone else but himself

So how do we tell the difference between "good" and "bad"? That is to say, the transferee "knows" whether the transferor has the ownership of the subject matter or not. If the assignee obtains the subject matter without knowing it, then the assignee is a "bona fide third party". On the contrary, it is malicious. One thing to pay attention to is that, according to the provisions of article 106, paragraph 1 of the property law, the transferee's good faith refers to the subjective state of mind when it receives the subject matter. As for whether it is good faith or bad faith afterwards, it will not affect the acquisition of its real right without asking.

The mode of exchange mainly refers to buying and selling, exchanging and paying off debts. According to the relevant provisions of the "property law", "transfer at a reasonable price". Therefore, if the transferee obtains the subject matter by inheritance, gift or bequest, then the effect of bona fide acquisition will not occur.

The bona fide acquisition system protects the existing state of property, not the future state of property. Therefore, the acquisition in good faith system cannot be applied if there is only an agreement to transfer the real right without registration or delivery.

In a finance lease, the lessor reserves the ownership of the lease item and collects the rent, while the lessee enjoys the right of possession, use and profit of the ownership of the lease item within the term of the lease contract. Under the existing legal framework, general lease items other than special objects ships, aircraft and motor vehicles are publicized by means of "possession". However, the separation of possession and ownership is an important feature of financial leasing transactions. Because of this feature, many problems will occur in real life. When the leased property is possessed by the lessee, judging the ownership of the leased property according to the way of publishing the possession of the real right of the chattel will undoubtedly make the third party fall into the illusion that the ownership of the leased property belongs to the lessee. Then, according to the principle of public announcement and public trust, the third party is presumed to be "the third party in good faith", and the applicable conditions of bona fide acquisition will be easily applied, so the third party in good faith can acquire the ownership of the leased property according to the bona fide acquisition system. Promulgated in 1996 the supreme people's court "about some issues of financing lease contract dispute cases provisions in article 10," on the lease before completion of the contract, without the consent of the lessor, the lessee the lease item to mortgage, transfer, sublet or share investment, their behavior is invalid, the lessor has the right to take back the lease item, and require the lessee to compensate for the losses. Where the invalid act of the lessee causes losses to a third party, the third party shall have the right to demand compensation from the lessee. However, after the implementation of the property law, this provision was abolished. Then the lessor loses the right to retrieve the leased property and the favorable protection for the lessor to maintain its legitimate rights and interests. The lessor has slipped from the advantageous position of having both ownership and creditor's rights to the leased property to the unfavorable position of having only creditor's rights to the leased property. When the lessor is sold by the lessee to a third party, the lessor can only claim liability to the lessee, which seriously damages the interests of the lessor, and thus the transaction security in finance lease is greatly challenged unfairly.

The author thinks, setting up "register public system" is a feasible solution. According to article 23 of the property law, "the establishment and transfer of the real right of a chattel shall take effect upon delivery, unless otherwise provided by law." The proviso part of this law provides great development space for our financial leasing to adopt the registration and publicity system. Financing lease registration system in the United States, Argentina, Russia and many other countries have started to apply, in the aspect of finance lease registration in our country at present while also have carried out beneficial practice, but the author thinks that in today's society, science and technology based on the wide application of Internet in the field of the financing lease, should vigorously promote "registration system". The unified electronic registration platform on the Internet in financial leasing can not only protect the interests of the lessor and the third party in good faith, but also improve the transaction efficiency of the economic market. The establishment of publicity system is in line with the development trend of the world economy and the new product of the trend of The Times.

It can also increase the punishment of the lessee in law. The collision between the two is due to the fact that the lessee has not strictly performed the obligations it should follow. Therefore, the lessee can be required to bear the losses of the lessor and the third party in good faith when the law is necessary.

There is no clear definition of "good faith". Based on article 106 of the property law and on the basis of legal and moral justice, the author proposes to make some changes in article 106, which should be stipulated as "whether it is good faith or bad faith after the fact, it will not affect the acquisition of the real right without asking. Unless it is clearly malicious and causes serious damage to the owner afterwards." The section of "proviso" can perfect this article and make it more specific. This, by and large, clarifies the concept of goodwill.

Specifically speaking, as for the standard of "good faith", the author thinks that when there is a problem in the transaction, the third party can be asked to present 2-3 evidences which are subjective to be good faith in the transaction, and implement the "third party proof system" to achieve the effect of inversion of the burden of proof by imitating the important link of "proof proof" in the criminal law. Additional, still can consult a few objective standards of assignee, if the assignee has the obligation that knows the subject matter legally when property transfers; How professional and educated the transferee is; The attitude of the transferee during the transfer of property as a reference to judge.

"Transfer at reasonable price" has no clear definition of "reasonable". The word "reasonable" should be changed to "reasonable price determined by the market economy of the subject matter at that time is the standard", which will clearly define the definition of "reasonable" and reduce unnecessary disputes brought by it at the same time.

In terms of morality, the definition of "reasonable" should be based on the price level at that time. As the price of a period is different from that of a period, the price of a later period should not be measured by the standard of a previous period, nor should the standard of "reasonable" be determined by the standard of a reasonable individual.

It is a major defect that intangible property such as trade secret is not included in the bona fide acquisition system. On the macro level, compared with movable property and real estate, business secrets are more rare, but in the bona fide acquisition system of the property law, there are no relevant issues related to intangible property, which is inconsistent with the increasingly developing society. In the future legislative process, our country can learn from the successful legislative experience of foreign countries. First of all, trade secrets are intangible property, so the acquisition of trade secrets in good faith is judged based on whether a third party has the right to use or disclose trade secrets to seek profits. Secondly, in order to maintain the justice of law and improve the judicial efficiency, the third party in good faith should bear the burden of proof. Finally, in specific legal provisions, the "notification theory" in the United States legislation should be actively adopted. The "notification theory" is further divided into two types: one is "before receiving the notification", that is, the use or disclosure of trade secrets by a third party in good faith before receiving the notification is not legally liable; The other is "after receiving the notice", that is, after receiving the notice to use or disclose, should assume legal responsibility for others. However, there is an exception here, that is, prior to the payment of trade secret consideration in good faith. This kind of "notification theory" is a perfect and comprehensive analysis of the different handling situations of trade secrets after the third party receives the notification, and also reflects the flexibility of law. The author thinks that laws should keep pace with The Times, and the intangible property represented by trade secrets should be introduced into the bona fide acquisition system, which will make the bona fide acquisition system more instructive.

Financial leasing is a large cross-field industry. The intersection of financial leasing and bona fide acquisition is due to the great conflict between the interests of lessor and bona fide third party, which seriously hinders the healthy and orderly development of the financial leasing industry, and also reflects the imperfect laws and regulations of bona fide acquisition system. Therefore, with the development of The Times, the law should also keep pace with The Times. The system of acquisition in good faith should be further improved. Law is based on society. When society reflects problems, law should put forward corresponding solutions in time. Only in this way can the society develop in a more orderly way.

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