售后回租型融资租赁中“实为借贷”的抗辩厘清——以与直租型融资租赁的对比为视角

Clarification of the Defense as “Loan” in Sale and Leaseback Finance Lease—From the Perspective of Comparison with Direct Lease Finance Lease

摘要: 售后回租型融资租赁中实为借贷的抗辩适用应以售后回租型融资租赁的法律构造为基础。其存在两种理解方式：其一，出租人与承租人先行的“售后”导致承租人自有物之所有权发生转移，从而出租人享有完全的所有权；完成此真实的“融物”过程，则售后回租型融资租赁与直租型融资租赁并无不同，融资租赁关系成立；而欠缺此融物过程，售后回租型融资租赁不成立，出租人与承租人之间实为借贷关系。其二，考虑标的物为自有物之属性以及当事人之真意，出租人与承租人先行的售后仅具有让与担保之意，售后之价款实际为出租人给予承租人之融资款，自有物之移转只为担保目的；因此其与借贷 + 担保之结构并无实质差别。通过与直租型融资租赁的对比，第二种法律构造更能还原售后回租型融资租赁的交易本质；但第一种法律构造的理解及司法适用较为广泛。若采第一种理解，售后回租型融资租赁与借贷之区分与主要受到租赁物是否真实存在、租金价格是否适配两项因素的影响；若采第二种理解，售后回租型融资租赁与借贷 + 担保之效果并无不同。

Abstract: The legal structure of sale and leaseback financial lease should be the basis for the application of the defense which is actually loan. There are two ways to understand it: firstly, the “after-sales” of lessor and lessee leads to the transfer of the ownership of the lessee’s own property, so that the lessor enjoys the complete ownership; after the completion of this real “melting” process, there is no difference between sale-leaseback finance lease and direct lease finance lease, and the finance lease relation-ship is established. Without this process, sale-leaseback finance lease is not established, and the relationship between lessor and lessee is actually a loan relationship. Secondly, considering that the subject matter is the property of the own thing and the true intention of the parties, the first af-ter-sale sale between the lessor and the lessee only has the meaning of giving guarantee, and the after-sale price is actually the financing money given by the lessor to the lessee, and the transfer of the own thing is only for the purpose of guarantee. Therefore, there is no substantial difference be-tween the loan and guarantee structure. Compared with direct lease finance lease, the second legal structure can better restore the transaction essence of sale and leaseback finance lease. But the first kind of legal structure of understanding and judicial application is more extensive. If the first understanding is adopted, the distinction between sale-leaseback finance lease and lending is mainly affected by two factors: whether the lease property exists and whether the rent price is compatible. If the second interpretation is adopted, the effect of sale-leaseback finance lease is no different from that of loan + guarantee.