Financial leasing contract refers to the contract under which the lessor, based on the selection of the seller and the leased property by the lessee, purchases the leased property fromthe seller for the lessee to use, and the lessee pays the rent. Different risk control methods of the projects shall be applied to different leased property involved in financial leasing. Vessel, aircraft and other property financial leasing projects mainly focus on the safety of the leased property itself, so the projects often involve property all risks, machinery damage insurance, operational interruption insurance, theft insurance etc.
而涉及动产的融资租赁项目中，因财产易灭失、不易控制等问题，更多关注的是交易主体的违约责任，传统上往往采用财产担保、企业或个人担保的方式规避风险。商业信用险和承租人责任险可作为此类项目的金融增信工具，并在一定程度上代替传统担保方式。
While financial lease projects involving movable property mainly focus on the liability for breach of contract of the transaction subjects since the movable property is easy to loss and difficult to control, and the risk is generally avoided by property guarantee, enterprise or personal guarantee. Commercial credit insurance and lessee liability insurance may take as financial instruments of such projects to increase credit and substitute traditional ways of security to some extent.
· 业务模式
Business Model
框架协议+多份实施协议
实务中，融资租赁项目开始前一般先由出租方（资金方）、产品出卖方、保险公司三方签署框架性协议，约定项目整体目标和实现方式。随后各方分别签署买卖合同、融资租赁合同以及保险合同等。常见模式为出租方从出卖方购买产品后再融资租赁给承租人；有的模式中也允许出卖方将产品卖给出租方后，再将产品融资租赁回租，再由卖方转租给实际承租人。
In practice, the lessor (the financing party), the seller of the product and the insurance company always enter into a tripartite framework agreement before the launch of financial leasing project, and specify overall objectives of the project and its implementation methods. Then each party will execute purchase and sale contract, financial leasing contract and insurance contract etc. respectively. It’s common that the lessor purchases products from the seller, and finance and lease the products to the lessee; sometimes, it’s permissible for the seller to sell products to the lessor and finance the products and lease back, and then the seller will sublet to the actual lessee.
出租人作为受益人的效力
承租者责任险承保的“保险责任”是被保险人逾期支付租金责任，实际承租人作为被保险人享有保险理赔权。为最终保障出租人权益，交易模式中往往将出租人设定为保险合同的“受益人”或“保险索赔权益人”。根据保险合同相对性原则，保险索赔权是专属于被保险人的权利，不可以擅自转让。即便三方协议约定出租人可以作为“受益人”或“保险索赔权益人”，也不能免除被保险人按照保险条款证明保险事故发生，以及提交相应索赔文件的义务。如果出租人不能提交相应文件证明保险事故，则可能面临索赔失败的结果。
The “insurance liability” insured by the lessee' sliability insurance is the late payment of rent by the insurant, and the actual lessee is entitled to insurance claims as the insurant. To protect the interests of the lessor ultimately, it is usually in trading patterns to make the lessor as the “beneficiary” or “the owner of insurance claims” under the insurance contract. According to the doctrine of privity of insurance contract, insurance claims rights are the exclusive rights of the insured, and cannot be transferred without authorization. Even if it is agreed in tripartite agreement that the lessor can be consideredas “beneficiary” or “the owner of insurance claims”, the insurant cannot be exempt from the obligations to prove the occurrence of insurance accident in accordance with the insurance terms and submit the appropriate claim documents. If the lessor fails to submit appropriate documents to prove the insurance accident, the claims may be rejected.
租赁合同关系造假
实践中融资租赁公司往往更关注“融资”流程，而忽略对产品买卖及租赁环节真实性的审核，以为只要实际放款就可索赔成功。我所律师代表保险公司处理若干承租者责任险和商业信用险理赔纠纷中，通过实地调查、调取官方资料等证据，发现众多案件中存在出卖人与承租人合谋欺骗出租方，以书面手续齐全但并不真实存在的租赁关系骗取了出租人资金的情况。虚假租赁合同属于保险理赔的除外责任条件，如能证实，保险公司将依法不承担赔偿责任。
In practice, financial leasing companies tend to be more concerned about the 'financing' process, while ignoring the audit of the authenticity of purchase and sale of the productsand the lease, and they always believe that as long as they actually make loans, they can claim successfully. In the severaldisputes over claims of lessors’ liability insurance and commercial credit insurance that handled by the lawyers in our law firm on behalf of the insurance companies, through field investigation and access to official information and other evidences etc., it is found in many cases that the seller and the lessee conspired to deceive the lessor, and defraud the lessor to gain the funds of the lessor with inexistent lease relationship but of complete written formalities. False lease contract belongs to exclusions of insurance claims. The insurance company will not be liable for compensation according to law if the contract is proved to be false.
· 风控要点
Key points in risk control
选择正确的险种
出租人如果能在项目谈判初期正确选择险种，将对其资金安全起到更大的保障。我们认为，出租人选择商业信用险，可以更直接受到保险的保障。因为商业责任险的被保险人为出租人，保障的“保险责任”为承租人失信导致的租金损失。除非融资租赁关系本身有瑕疵，例如虚构租赁关系，否则保险公司均应按保险合同进行理赔。保险公司也需要对被保险人险种选择予以正确的引导，避免理赔纠纷的发生。
If the lessor chooses right insurance at the initial stage of the project negotiations, it will offer greater protection to their financial security. We believe that commercial credit insurance offers more direct guarantee to the lessor. Because the insurant of commercial liability insurance is the lessor, and the “insurance liability” guaranteed is the rent loss arising from failure by the lessee to keep the promise. Unless the financial leasing relationship itself is flawed, such as fictitious lease relationship, the insurance company shall settle the claim in accordance with insurance contract. Insurance company shall guide the insurant to choose the right insurance, thus avoiding the occurrence of dispute over insurance claim.
完善合作协议条款
交易各方在框架协议谈判过程中应尊重保险产品本身特点，结合租赁物特点制定合法合规的合作协议，以保障项目资金安全并规避道德风险。例如，保险公司可要求出租人在保险事故发生后，以取得对承租人的胜诉判决作为索赔条件。如此不仅可降低保险公司出险风险，同时也督促出租人更加谨慎的选择项目、更好地履行合同义务。同时，各方框架协议中应避免出现由保险公司承担担保义务的条款。最后，各方需明确保险公司最终承担责任的依据是保险合同条款，各方均无权以合作框架协议直接要求保险公司承担责任。
The parties of the transaction shall respect the characteristics of the insurance product itself during negotiation process of the framework agreement, and make legitimate cooperation agreement based on the characteristics of the leased property, for the purpose of ensuring the safety of project funds and avoiding moral hazard. For example, the insurance company may request the lessor to obtain a judgment against the lessee as a condition of the claim after the occurrence of insurance accidents. Thus it can not only reduce the risk of insurance accident, but also urge the lessor be more prudent to choose projects and better fulfill its contractual obligations. Meanwhile, it shall avoid terms that require insurance company to assume guarantee obligations underthe framework agreement of the parties. Finally, the parties need to expressly specify that the insurance company shall assume relevant responsibilities subject to the terms of insurance contract, and no party is entitled to directly request the insurance company to assume responsibilities according to the cooperation framework agreement.
加大资信审查和租赁合同监管
无论对于资金方还是保险公司，资信调查、业务真实性审查和履约过程的监督程序都是不容忽视的。合同履行前，出租人和保险公司应协作对承租人和出卖方予以资信和履约能力调查，对能够反映其经营状况和信用状况的证照、信贷记录、财务报表、验资报告等材料进行审核。如果发现重大违约可能性，保险公司可作出拒绝承保决定。在合同履行过程中，应对租赁物交付行为严格监管，严防承租人与出卖人串通，虚构租赁物及虚假交付。在租赁物使用过程中，出租人和保险人应对融资后租赁物使用和合同履行情况予以跟踪，对承租人转租或经营恶化情况及时发现处理。
Credit investigation, review of business authenticity and supervision procedures during the performance of contract should not be ignored by the funding parties as well as insurance companies. Before performance of a contract, the lessor and the insurance company should cooperate to investigate the credit and performance capabilities of the lessee and the seller, and review relevant certificates, credit records, financial statements, capital verification report and other materials that reflect their operations and credit status. In case of any possibility of material breach of contract, the insurance company may refuse the insurance application. During the course of fulfilling the contract, the delivery of the leased property shall be strictly supervised to prevent the lessee and the seller collude with each other to invent leased property and deliver falsely. In the course of using the leased property, the lessor and the insurer shall follow up with the usage of the leased property and performance of the contract, and timely discover and handle with sublet behaviors of the lessee or deterioration of its operation.
作者：吴迪 律师
联系客服
