融资租赁中破产取回权的基础与限制

Foundation and Limitation of Bankruptcy Recall Right in Financial Leasing

作为破产取回权基础的所有权为传统所有权,而融资租赁中出租人的所有权发生了弱化并具有了担保性。所有权的弱化为出租人行使破产取回权造成了理论障碍,而所有权的担保性为出租人行使破产别除权提供了理论基础。从实践来看,承租人破产后,这种限制出租人破产取回权而仅允许其行使破产别除权的做法也有利于更大程度地保护破产中各相关利益主体的利益。

The ownership as the foundation of bankruptcy recall right is the traditional ownership. However, in financial leasing, the ownership of the leaser has been weakened and has been guaranteed. The weakening of ownership brings theoretical obstacles for the leaser to exert bankruptcy recall right, while the nature of guarantee of ownership provides theoretical basis for the leaser to exert bankruptcy exemption right. In practice, after the bankruptcy of lessees, the method of limiting lessors＇ bankruptcy recall right and allowing their exertion of bankruptcy exemption right could protect the interest of all relevant interest parties to the greater degree.