论融资租赁合同中出租人的破产取回权

A Study on the Lessor's Bankruptcy Recall Right in a Financial Leasing Contract

在非典型融资租赁的场合,租赁期内标的物归出租人所有,承租人破产的,标的物不属于破产财产,出租人应当享有破产取回权。在典型融资租赁的场合,融资租赁期内承租人已实际享有标的物所有权的权能;租赁期届满且合同如约履行的,承租人便可取得标的物完整的所有权——出租人让渡其为担保租金收缴而保留的名义所有权。因此,租赁期内标的物实际上归属于承租人,一旦承租人破产,标的物应列为破产财产,出租人不能取回。

In the case of an atypical financial leasing contract, it is the lesser that owns the subject matter duringthe lease term. Once the lessee goes bankrupt, the subject matter of lease term should not take as bankruptcyassets depending on the lesser’s Bankruptcy Recall Right. Unlikely, in the case of a typical financial leasingcontract, it is the lessee that actual possesses the subject matter and enjoys the ownership during the lease term. Aslong as the lessee keeps the implementation of the contract when the lease expires, he has the right to own thesubject matter of lease term completely, and the lesser ought to release the nominal ownership of the guaranteerent that he collects. Therefore, if the lessee falls into bankruptcy, the subject matter of lease term, which belongsto the lessee actually, is classified as bankrupt properties, namely, the lesser has no right to take the subject back.