融资租赁回购担保合同的性质与效力问题研究

Study on the Nature and Validity of Financial Lease Repurchase Guarantee Contracts

摘要: 关于融资租赁回购担保的定性问题，理论和司法裁判中都有不同的观点，但似乎从纯粹非典型商事合同出发，来讨论回购担保合同的法律性质，并基于此进一步考量回购担保合同自身的有效性以及其法律效果更为合理。回购担保合同涉及的回购范围应在当事人约定的范围内，未约定或约定不明确时应结合交易习惯并遵循公平原则；当承租人就融资租赁合同为出资人提供其他保证或担保时，回购义务人并不能当然适用多个担保并存时的规则。当租赁物因不可归责于双方当事人的事由而毁损灭失，依照《民法典》有关规定，双方当事人可选择解除合同或者继续履行，两种路径都涉及到出租人与回购义务人之间的债权让与问题。

Abstract: Regarding the characterization of financial lease repurchase guarantees, there are different views in theory and judicial judgments, but it seems that it is more reasonable to discuss the legal nature of repurchase guarantee contracts from the per-spective of purely atypical commercial contracts, and to further consider the validity of the repur-chase guarantee contract itself and its legal effects based on this. The scope of the buyback under the purchase guarantee agreement must be within the range agreed between the parties and it is unclear whether there is no agreement or the contract, it should be combined with trading habits and follow the principle of fairness; when the lessee provides other guarantees or guarantees to the funder in respect of the financial lease contract, the repurchase obligor cannot automatically apply the rule when multiple guarantees coexist. When the leased property is damaged or lost due to reasons not attributable to the parties, according to the relevant provisions of the Civil Code, the parties can choose to rescind the contract or continue to perform, both of which involve the assign-ment of claims between the lessor and the repurchase obligor.