融资租赁立法比较研究

发布时间：2018-05-26 21:58

本文选题：融资租赁 + 私法　；参考：《华东政法学院》2004年硕士论文

【摘要】：融资租赁作为一种新型的交易方式,目前在全球发展势头迅猛。其在许多方面突破了传统法律关系,给立法、司法带来了许多新问题。基于此,本文在查阅大量国内外有关文献的基础上,理论联系实际,运用比较研究的方法,在对国外有关融资租赁法律制度的比较与剖析的基础上,立足我国实践,对现行我国融资租赁有关立法进行研究与探讨,为完善我国的融资租赁立法,促进我国融资租赁业的发展提供一点参考。全文共四章。第一章主要阐述了融资租赁立法中的一些基本问题。首先分析了融资租赁产生的背景,并简要介绍了全球及我国融资租赁业的发展状况,表明融资租赁自产生以来迅速发展的态势,以此引起立法者对这一新兴行业的重视。其次阐述了融资租赁的立法体系的构成,指出了融资租赁的立法体系不仅包括民商法等私法范畴的立法,还包括监管法、税法、会计法等公法范畴的立法。最后阐述了融资租赁的立法模式,根据各国的立法实践,将其大致分为专门立法和不专门立法这两种模式,并对这两种模式的优缺点进行了简要分析。 .第二章是关于国外融资租赁私法立法的比较。首先介绍了美国、英国和日本有关融资租赁的民商事立法及相关的判例规定。其次对《国际融资租赁公约》这一唯一的一部有关融资租赁私法方面的国际立法,分别从其立法背景、主要内容以及对各国融资租赁私法立法的影响,这三个方面对其加以专门评述。最后对各国及公约在融资租赁私法规定方面的差异性作了分析,同时也得出了融资租赁在私法立法中应共同具备的条款的结论。第三章是关于国外融资租赁公法立法的比较,具体包括:监管立法、税收立 WP=3 法和会计立法。在监管立法方面,分别对发达国家和发展中国家,在融资租赁的市场准入、管理措施等监管法律制度方面的内容,进行了比较,并对融资租赁实施行政监管的利弊作了分析,得出了对融资租赁一方面应实行较严格的市场准入,另一方面对融资租赁是否要实行金融监管应根据其所含金融职能的多寡而定的结论。在税收立法方面,在对美、英两国有关融资租赁的税收立法实践考察的基础上,得出了在新兴租赁市场国家,应在融资租赁发展初期制定包括投资税收抵免、加速折旧等优惠税收政策,来推动和扶植融资租赁业的发展的结论。在会计立法方面,分别对美国及有关国际组织对融资租赁的会计立法进行了简要介绍,分析了融资租赁的会计立法所遵循的经济“实质”重于法律“形式”的原则。第四章是关于完善我国融资租赁的立法,这也是本文的重点。首先从微观的角度,对我国融资租赁私法、公法的完善进行了阐述。在私法立法方面,提出了在《合同法·融资租赁》中应明确规定禁止中途解约及其限制、承租人对供货人的法定索赔权和租赁物风险损失责任归属的建议,同时也提出了建立租赁物物权公告、登记制度的建议。在监管立法方面,分别对内资租赁公司的市场准入办法、监管体制的完善和行业协会作用的发挥这三方面提出了建议;在融资租赁税收立法方面,分别对投资抵免税、加速折旧制度、营业税征收、关税减免中存在的问题,提出了完善建议;在融资租赁会计立法方面,指出了《企业会计准则—租赁》的先进性,并对其进一步完善提出了建议。其次,从宏观的角度,提出了我国应制定专门的《融资租赁法》,首先阐述了专门立法的理由,其次分析了《融资租赁法》的法律属性和法律地位,最后对《融资租赁法》的立法框架提出了设想。
[Abstract]:As a new type of trading mode, financing lease is developing rapidly in the world. It has broken through the traditional legal relationship in many aspects, and brought many new problems to the legislation and judicature. Based on this, this paper, on the basis of consulting a large number of relevant documents at home and abroad, connected theory with practice, and applied comparative research methods to foreign related aspects. On the basis of the comparison and analysis of the legal system of financial leasing, based on the practice of our country, this paper studies and discusses the existing legislation of financing lease in our country, and provides a reference for improving the legislation of financing lease in our country and promoting the development of the financial leasing industry in our country.
The full text consists of four chapters. The first chapter mainly expounds some basic problems in the financing lease legislation. First, it analyzes the background of the financing lease, and briefly introduces the development of the financial leasing industry in the world and China, which shows the rapid development trend since the financing lease has been produced, so that the legislator's attention to this new industry is aroused. Secondly, it expounds the constitution of the legislative system of financing lease, and points out that the legislative system of financial leasing includes not only the legislation of private law category, such as civil and commercial law, but also the legislation of public law, such as supervision law, tax law, accounting law and so on. Finally, the legislative mode of financing lease is expounded. According to the legislative practice of various countries, it is roughly divided into special legislation and the legislation. The two models are not specifically legislating, and the advantages and disadvantages of the two models are briefly analyzed.
The second chapter is the comparison of the legislation of foreign financial leasing private law. First, it introduces the civil and commercial legislation and relevant case regulations concerning financial leasing in the United States, the United Kingdom and Japan. Secondly, the only one international legislation on the private law of financing lease, the international financial lease convention, is the main content of its legislative background. As well as the impact on the legislation of private law on financial leasing in various countries, the three aspects are specially reviewed. Finally, the differences between countries and conventions in the provisions of private law of financing lease are analyzed. At the same time, the conclusions of the provisions that the financing lease should have in the private law legislation are also drawn.
The third chapter is about the comparison of foreign financial leasing public law legislation, including: Supervision legislation, tax legislation.
WP=3
In the aspect of law and accounting legislation, the article compares the contents of the developed and developing countries with the regulatory legal system of the market access and management measures of the financing lease, and analyses the advantages and disadvantages of the administrative supervision of the financing lease, and concludes that a more strict market alignment should be carried out on the one hand of the financing lease. On the other hand, on the other hand, the conclusion that financial leasing should be carried out in financial supervision should be based on the number of financial functions it contains. On the basis of tax legislation, on the basis of the investigation of tax legislation in the United States and Britain on financing lease, it is concluded that in the new leasing market countries, investment should be made in the early stages of the development of financial leasing. Tax credit, accelerated depreciation and other preferential tax policies to promote and foster the development of financial leasing industry. In the accounting legislation, the United States and relevant international organizations are briefly introducing the accounting legislation of financial leasing, and the economic "essence" of the financial leasing is more important than the legal "form". Principle.
The fourth chapter is about perfecting the legislation of financing lease in our country. This is the focus of this article. First, from the micro point of view, it expounds the improvement of private law and public law in China's financing lease. In the legislation of private law, it is put forward that in the contract law, financing lease, the dissolution of the contract and its limitation should be clearly stipulated, and the lessee is legal on the supplier. At the same time, the suggestion of the ownership of the right of claim and the liability for the loss of the leasehold is also proposed. At the same time, the proposal of establishing the property right notice and the registration system is put forward. In the aspect of supervision legislation, some suggestions are put forward on the three aspects of the market access method of the domestic leasing companies, the perfection of the regulatory system and the role of the industry association. On the aspect of law, we put forward perfect suggestions on the problems of investment tax exemption, accelerated depreciation system, business tax collection and tariff reduction. In the aspects of financial leasing accounting legislation, it points out the advanced nature of "enterprise accounting standards renting >" and puts forward some suggestions for its further improvement. Secondly, it is proposed that China should formulate from the macro point of view. The special "financing lease law" first elaborated the reasons for the special legislation, followed by the analysis of the legal and legal status of the financial leasing law. Finally, the legislative framework of the financial leasing law was conceived.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D913.99;D99

【引证文献】