论融资租赁合同中的风险负担

On Risk- bearing in Financial Leasing Contract

《关于审理融资租赁合同纠纷案件适用法律问题的解释》第七条明确了融资租赁合同中租赁物毁损、灭失的风险由承租人承担。但该解释第十一条第2项赋予承租人于租赁物损毁灭失时以单方解除权,便使得承租人有逃逸风险的机会。融资租赁本质上是承租人的一种筹资方式,其与出租人之间的"融资关系"实为借贷。显然,融资租赁合同生效期间,于标的物所有权上衍生的权、责都已经转移至承租人,因而由承租人负担风险比较合理。

The 7th article in Judicial Interpretation for the Cases of Financial Leasing Contract explicitly points out that the risk of damage or the loss of the lease property belongs to the lessee. But the Item 2 of Article 11 offers the unilateral right for the lessee to terminate the contract after the lease property is damaged or lost and it is the chance for the lessee to escape. Financial leasing is, essential-ly, fundraising from lessee and his fundraising relationship with the lessor is loan. Obviously, during the contract, both right and responsibility derived from the ownership are transferred to the lessee and it is relatively reasonable for the lessee to bear this risk.