? Internet plus financial leasing? It is a new format and mode for financial leasing companies to use the Internet as infrastructure and implementation tools to improve the efficiency of capital turnover, speed up the effective operation of funds, realize the realization of off-balance sheet assets and expand the scale of assets.

First,? Internet plus financial leasing? business model

(A) P2L(P2P to Leasing) P2P loan model

P2L is a variant of P2P(Peer to Peer), which refers to the connection between individual investors and financial leasing enterprises, and it refers to P2P peer-to-peer lending platform (hereinafter referred to as? P2P platform? Individuals registered as investors lend to private lending and investment activities of professional financial leasing companies through loan contracts. On the peer-to-peer lending platform, the financial leasing company is the borrower and the investor registered on the P2P platform is the lender. Financial leasing companies use loan funds to purchase professional equipment and rent it to relevant lessees during the lease period. The lessees pay the rent and the lessors pay the rent. The financial leasing company pays part of the rental income to the investor (lender) according to the interest rate agreed in the loan contract. When the lease project ends, the P2L loan contract period also ends.

P2L online loan model diagram

P2L online loan mode operation instructions:

1. The financial leasing company establishes a cooperative relationship with the P2P platform through an agreement and seeks loan funds through the platform;

2. The financial leasing company will display the loan information of the leased project in the form of the loan target on the platform, including the leased project, loan amount, interest rate, loan term, guarantee measures (if any) and other information.

3. number three. The P2P platform signed an agreement with a third-party payment company on the custody of investors' lending funds and borrowers' borrowing funds, clearly indicating to investors that the platform does not contact investors and borrowers' funds;

4. Investors bid for the loan target of the financial leasing company and remit the funds to the third-party payment company for custody after winning the bid;

5. The third-party payment company issues loan funds to the financial leasing company according to the platform instructions;

6. The financial leasing company will remit the income (principal and interest) of the leased project to the third-party payment company according to the platform instructions;

7. The third-party payment company will return the income (principal and interest) of the leased project to the investors according to the instructions of the platform, and this peer-to-peer lending activity will be over.

(II) Method of creditor's rights transfer

The assignment of creditor's rights refers to the contract assignment without changing the contract content. By signing a contract with a third party, the creditor transfers all or part of the creditor's rights to the third party, and the third party replaces the original creditor as a new creditor in the original contractual relationship. The original contract creditor loses the rights of the contract creditor due to the transfer of the contract.

General financial leasing companies directly launch projects on the P2P platform, and the platform conducts due diligence according to the leasing contract, profitability and leased property of the leasing company, and discloses information to investors on the platform. After the establishment of the project, the leasing enterprise obtains the right to use the leased equipment through the financial leasing agreement, the lessee pays the rent to the financial leasing company, and the financial leasing company transfers the financial leasing creditor's rights formed by the rent to the investors. The rent paid by the leasing enterprise to the leasing company on a regular basis is supervised by a third-party organization entrusted by the P2P platform to repay the investors. After the rent is paid, the project expires and the leasing enterprise obtains the ownership of the leased equipment. If the leasing enterprise cannot pay the due rent, the financial leasing company will jointly take back the equipment with the P2P platform and repay the investor's principal and interest after disposal according to the contract. This model is generally used for small general equipment, such as agricultural machinery, small manufacturing equipment, cars and other financial leasing.

Model diagram of creditor's rights transfer

Instructions for the operation of creditor's rights transfer mode:

1.P2P platform conducts due diligence on financial leasing projects (leasing enterprises) to determine the feasibility of financial leasing projects;

2.P2P platform will show the creditor's rights transfer information of financial leasing project to investors, who will decide whether to invest;

3. The financial leasing company signs a creditor's rights transfer contract with the investor, and the investor becomes a new creditor, and the financial leasing company withdraws from the creditor's rights and debts relationship with the leasing enterprise;

4. The investor pays the investment money delivered by the company to the third party;

5. The third-party payment company issues the investment money to the financial leasing company according to the instruction of P2P platform, and the financial leasing company obtains the transfer money of creditor's rights;

6. The leasing enterprise pays the rent paid by the company to a third party;

7. The third-party payment company pays the investor the investment income (the rent paid by the lessee) according to the instruction of P2P platform.

Additional notes:

1.P2P platform may require financial leasing enterprises to provide additional guarantees;

2. The 2.P2P platform will require the financial leasing enterprises to entrust the investors' funds and the repayment funds of the leasing enterprises to the third-party payment companies for custody, and supervise the funds of the financial leasing enterprises and the third-party payment companies.

3.P2P platform requires the financial leasing company to buy back the creditor's rights when the lessee can't pay the rent as scheduled.

(3) Transfer method of income right

Property ownership includes possession, use, income and disposal. Usufructuary right is the economic benefit obtained by the owner through the possession, use, operation and transfer of property, and usufructuary right is a basic right of ownership. In recent years, usufructuary right has become more and more independent, because in practice it is often regarded as a power separated from ownership. The transfer of the income right of financial leasing assets is an investment activity in which the financial leasing enterprise transfers the lessee's rental income to the P2P platform investor (transferee) at a certain price, and the P2P platform investor pays the corresponding consideration to the financial leasing enterprise and obtains the rental income.

The general financial leasing company is the initiator of the project. The basic process is: after signing the financial leasing agreement with the leasing enterprise, the financial leasing company transfers the income right (rent receivable) of the financial leasing assets to the investors through the P2P platform, and the financial leasing company collects the rent from the leasing enterprise and pays the principal and interest to the investors regularly according to the contract. The financial leasing company earns the difference between the two, and the platform earns the commission. Different from the mode of creditor's rights transfer, in the transfer of the income right of financial leasing assets, the due diligence of the leasing company is completed by the financial leasing company, and the platform only needs to evaluate the qualification of the financial leasing company and refer to the project information to disclose it to investors online. At the same time, the financial leasing company must be responsible for repaying the project investors through the platform.

Transfer mode diagram of income right

Operating instructions on transfer mode of income right:

1. The financial leasing enterprise conducts due diligence on the leasing enterprise, signs a financial leasing contract, and delivers the leased equipment and the leasing enterprise;

2.P2P platform will display the information about the transfer of the income right of leased assets on the platform;

3. According to the information on the transfer of income right displayed on the platform, the investor decides to sign a contract on the transfer of income right with the financial leasing company;

4. Investors pay the third party the consideration funds for the company to deliver the usufruct transfer contract, that is, the usufruct transfer funds;

5. The third-party payment company distributes the transfer money of income right to the financial leasing company;

6. The leasing enterprise pays the rental income to the third-party payment company;

7. The third-party payment company pays the rental income to the investors, and the investors get the investment income.

Additional notes:

1.P2P platform may require financial leasing enterprises to provide additional guarantees;

2.P2P platform will require financial leasing companies to entrust the consideration funds of investors and the rental income delivered by leasing companies to third-party payment companies for custody, and supervise the funds of financial leasing companies and third-party payment companies;

3.P2P platform requires the financial leasing company to buy back the income right when the lessee fails to pay the rental income as scheduled.

Second,? Internet plus financial leasing? Legal issues of

(A) the legitimacy and responsibility of the three models

The legitimacy of 1.P2L P2P loan model

In the pure lending platform model mentioned above, the P2P platform does not participate in the transaction, nor does it assume the responsibility of guaranteeing the repayment of principal and interest, but purely plays the intermediary role of both borrowers and lenders. Article 424 of China's contract law stipulates? An intermediary contract is a contract in which the intermediary reports the opportunity to conclude a contract to the client or provides media services for concluding a contract, and the client pays the remuneration. ? Therefore, we believe that the above platform should be legally recognized as an intermediary agency for intermediary services.

In the pure lending platform model, although the P2P platform facilitated the conclusion of the transaction, the lending relationship is still a legal relationship between individuals or between individuals and enterprises in essence. China's "General Principles of Civil Law", "General Principles of Loans" and related judicial interpretations all protect the legitimate private lending relationship, which is the legal basis of this kind of P2P platform.

2. Legality of the method of creditor's rights transfer

In the creditor's rights transfer mode, the creditor's rights transferee (investor) and the creditor's rights transferor (financial leasing company) directly sign the creditor's rights transfer repurchase contract on the P2P platform. P2P platform only plays the role of information disclosure and transaction matching, and cannot directly participate in transactions, while transaction funds and payment accounts are supervised by third parties such as platforms and financial leasing companies (banks or third parties pay), and financial leasing companies and platforms can earn certain commission income; Once the leasing enterprise fails to pay the rent, the equipment will be recovered by the joint platform of the financial leasing company, and the investor's principal and interest will be repaid after being disposed of according to the contract.

Specifically, there is a model of creditor's rights transfer, which is mainly based on the creditor's rights enjoyed by individuals with high correlation with P2P platform. Downing mode? Represented by CreditEase. As the first lender, Tang Ning, the founder of CreditEase, lent his own funds to users who needed loans and signed a loan agreement. Then, CreditEase split Downing's creditor's rights from the amount and term, packaged them into a fixed-income combination product, such as CreditEase Bao and Yue Yitong, and sold them to investors, but it is essentially a process of creditor's rights transfer. In this process of creditor's rights transfer, Tang Ning, as a professional investor, does not aim at obtaining future interest income and taking certain investment risks. Lenders and borrowers are not in one-to-one correspondence. Are you online? Internet plus financial leasing? In the mode of creditor's rights transfer, people like Tang Ning play the role of professional investors, who are responsible for purchasing the leased creditor's rights of the financial leasing company, and the financial leasing company obtains financing. Professional investors display the information of creditor's rights purchased on P2P platform, and many investors purchase creditor's rights through P2P platform and become new creditors.

Article 79 of the contract law? The creditor may assign all or part of its rights under this contract to a third party? ,? Where the creditor transfers its rights, it shall notify the debtor? . Through the analysis of the above process, as long as the obligation to inform the debtor (lessee) is fulfilled in the process of transfer, the way of creditor's rights transfer should be legal as a whole. As for the way to fulfill the obligation to notify the lessee, whether it is one-to-one written notice, newspaper announcement or website announcement, there is no clear stipulation in the law, which should be understood as not sticking to any form of notice.

3. Legality of usufructuary right transfer mode

In the way of creditor's rights transfer, the financial leasing company's rent creditor's rights to the lessee have been transferred, the financial leasing company withdraws from the existing legal relationship, and the buyer of the lease creditor's rights becomes a new creditor and enjoys the rent creditor's rights to the lessee according to law; However, in the transfer of financial leasing company's income right, financial leasing company is still the subject of legal relationship after the transfer, and its position as the subject of financial leasing transaction has not been shaken by the transfer of future income right. The financial leasing company has no obligation to inform the lessee of the transfer of income right, and the lessee continues to have the obligation to pay rent to the lessor's financial leasing company, that is, the transfer contract of income right between the financial leasing company and the purchaser of income right does not involve the third party lessee, which is different from the contract of creditor's rights transfer.

Under the transfer mode of income right, there is no legal provision on the transfer of asset income right in the existing legal norms, and the law does not explicitly prohibit it. Although there is still much controversy about the independence of the right to return on assets as a civil right, we believe that according to the civil field? Can the law not prohibit it? Considering the spirit of basic principles such as promoting market transactions, facilitating parties' trading activities, improving the efficiency of asset utilization and capital utilization, and optimizing asset allocation, the existing transfer model of asset income right is legal and reasonable on the whole.

4.4 responsibility. P2P platform

Although the P2P platform is in an intermediary position in the transaction, its function is only to promote the transaction between the two parties, and the reward is only the commission for participating in the intermediary activities. Whether the transaction can be reached depends mainly on the willingness of the financier and the investor to trade, but the author believes that P2P platform may still bear civil, administrative and even criminal responsibilities under certain circumstances.

(1) Civil liability. Article 425 of the contract law? The broker shall truthfully report to the client the matters related to the conclusion of the contract. Where a broker intentionally conceals important facts related to the conclusion of a contract or provides false information, which harms the interests of the client, he shall not demand a reminder and shall be liable for damages. ? For the brokerage P2P platform, the principal here is both a financial leasing company and an investor, and the responsibility object of the P2P platform is mainly responsible to the investor. P2P platform shall bear civil liability for compensation to investors when it fails to fulfill its due diligence obligation for financing projects of financial leasing companies or there are obvious omissions in project initiation. As for the amount of civil liability, the author thinks that it should generally be limited to the commission income of the platform. If you cheat investors together with the financial leasing company and cause serious losses to investors, investors can ask the platform to bear losses other than commission income.

(2) administrative responsibility. If the local financial authorities find that fraud and illegal fund-raising on the P2P platform are not serious enough for criminal punishment after receiving the investor's report or work inspection, they may impose administrative punishment on the P2P platform according to the situation.

(3) criminal responsibility. P2P platforms and financial leasing companies that practise fraud and fabricate financing projects to defraud investors of a large amount of funds or illegally raise a large amount of funds shall be punished in accordance with Article 192 of the Criminal Law. Crime of fund-raising fraud? Article 176? Crime of illegally absorbing public deposits? Conviction and punishment.

(B) The legitimacy of split transfer and maturity mismatch in the mode of creditor's rights transfer

1. Legality of division and transfer of creditor's rights. The split transfer of creditor's rights refers to the financial leasing company splitting a single creditor's right to the lessee into multiple creditor's rights according to the number of investors, so that the number of creditor's rights matches the number of investors. The essence is that the P2P platform splits and reorganizes the creditor's rights and transfers them to the public investors on the platform. Article 79 of the Contract Law only provides for one-to-one assignment of creditor's rights, and has not yet involved many-to-many assignment of creditor's rights after the same creditor's rights are divided. In reality, trust plans, asset securitization and other products mainly involve the split and transfer of creditor's rights. What is the name of the split and transfer of creditor's rights on P2P platform? Asset securitization? . The so-called asset securitization means that financiers sell specific assets with stable, predictable and continuous cash flow to special purpose vehicles (SPV), and SPV issues securities to unspecified investors through certain operations (such as splitting and reorganizing the risks and benefits of these assets and enhancing the credit of assets). The securities are essentially equal share property rights. In the United States, the transfer of creditor's rights to multiple investors through P2P platform is defined as securities transfer, and the transfer of creditor's rights on the Internet is a simple asset securitization. In China's current Securities Law, the scope of securities only includes shares of listed joint-stock companies, corporate bonds or corporate bonds issued by qualified companies, government bonds and shares of securities investment funds, such as shares of limited liability companies, trust plans, shares of limited partnerships, and shares of debt division. These are not included in the scope of securities. Therefore, there is no question that some people say that debt split transfer is a securities issue, and debt split transfer is legal, so it is called? Asset-like securitization? Instead of. Asset securitization? Is appropriate.

2. The legitimacy of the maturity mismatch of creditor's rights. The maturity mismatch of creditor's rights means that when the maturity of creditor's rights does not match the investor's investment period, the creditor or P2P platform will artificially split the maturity of creditor's rights into several time periods to match the investor's investment period. Specific to financial leasing companies, in order to solve the problem of maturity mismatch, financial leasing companies or P2P platforms try to choose short-term small projects within 1-2 years, and second, financial leasing companies adopt? Split the project? The way to connect with P2P platform is to split a long-term project into several short-term projects, and P2P platform will set up a second target after the previous project expires. The maturity mismatch of creditor's rights is essentially the split transfer of creditor's rights, not the securities issuance behavior of publicly issuing asset securitization products, and does not violate the current laws.

(C) The guarantee effect of rent creditor's rights under the creditor's rights transfer mode

Under the transfer mode of income right, the financial leasing company, as a creditor, will not withdraw from the creditor-debtor relationship with the lessee even if it transfers the income right to the investor. The financial leasing company still has the right to claim the rent from the lessee, while the investor can only claim the income from the leased assets from the financial leasing company, and the lessee's rent payment obligation is still fulfilled to the financial leasing company. Therefore, there is no doubt about the effectiveness of various guarantee contract clauses established by financial leasing companies in the lease contract to ensure the lessee's rent payment obligations. However, under the mode of creditor's rights transfer, the effectiveness of these guarantee clauses is debatable.

The guarantee mechanism of rent creditor's rights includes the equipment repurchase guarantee of the seller (supplier) of the leased property, the performance guarantee of the third party to the lessee, the right of recourse against the creditor's rights transferor, and the guarantee specially set up to ensure the rights and interests of the creditor's rights transferee. Because the repurchase guarantee of the seller (supplier) of the leased property is not the legal guarantee type stipulated in China's property law, this article will not discuss it.

The guarantee provided by the third party to the lessee's obligation to pay rent belongs to the legal guarantee method stipulated in the guarantee law and can be used as the assignee of the creditor's rights. At present, the main problem facing the mortgage provided to the third party is how to register the mortgage for the investors whose mortgagees are scattered. In this regard, a format clause is designed in practice, in which an investor entrusts a third person to hold the mortgage or entrusts one of the investors to hold the mortgage when transferring the creditor's rights. We can also learn from the current practice of transferring credit assets to special purpose institutions (SPV) in China's credit asset securitization business: before the debtor fails to fulfill its due obligations and needs to implement guarantee measures, it is still held by the transferor (original creditor) of credit assets; When the debtor fails to perform the due debt and needs to implement the guarantee measures to repay the debt, the secured creditor exercises the security right, and the security right is automatically transferred to the creditor's name, which is called the right improvement measure.

As the assignor of creditor's rights, the financial leasing company's commitment to the assignee of creditor's rights and the third party's guarantee to the assignee are guarantees specially established for the assignee, which have an enforceable basis in the subject of legal relationship. Its establishment way is to make an announcement commitment to investors through the way of webpage announcement, and it can also be legalized by adding the corresponding clause that the collateral security interest will be transferred under the way of creditor's rights transfer in the registration notice of P2P platform investors. When the investor completes the registration specified in the website, it is deemed that both parties meet the conditions for the establishment of the guarantee contract, so as to determine the effectiveness of the repurchase commitment or guarantee commitment.

(d) The transfer of ownership of the leased property under the mode of creditor's rights transfer.

Financial leasing is a kind of financing technology (for the lessee) and business model (for the lessor) that creatively uses the separation of ownership and use right of the leased property to maximize the use right of the property and give full play to the economic benefits generated by the efficiency of the use of the property, thus helping the property users to finance. It is this binary separation of ownership and use right of property that gives birth to the financial leasing industry, but it also brings a problem, that is, under the P2P platform, whether the ownership of leased property can be transferred to the new creditor's name with the transfer of lease creditor's rights. If the leased property is transferred to the name of the investor with the transfer of the creditor's rights, it is obviously impossible to separate the ownership of a leased property from multiple investors, because there are many investors. If the ownership of the leased property cannot be transferred to the investor's name with the creditor's rights, the investor, as a new creditor, cannot enjoy the right to take back the leased property when the lessee fails to pay the rent.

There are two ways to solve this problem: first, when the rent creditor's rights are transferred, the ownership of the leased property is transferred to someone among the investors, and other investors entrust someone to exercise the rights of the owner on their behalf, and clearly inform the lessee in the notice of creditor's rights transfer; Second, the ownership of the leased property will not be transferred with the rental creditor's rights, but the financial leasing company still retains the ownership of the leased property, and the investor gives up the ownership of the leased property (giving up civil rights does not violate the law). However, in the lease creditor's rights transfer contract, the investor explicitly requires the financial leasing company to take back the leased property as the owner and dispose of it to repay the investor's principal and interest when the lessee fails to fulfill the rent payment obligation on schedule.

(five) illegal fund-raising under the mode of transfer of creditor's rights and transfer of income rights.

Financial leasing companies publish false financing projects on P2P platform to obtain a large amount of funds, which is a fictional fact and defrauds investors' trust, which constitutes the crime of fund-raising fraud. This charge is easy to master, so I won't go into details here. What is difficult to grasp is that under the mode of transfer of creditor's rights and transfer of income rights, financial leasing companies may touch the crime of illegally absorbing public deposits.

Article 176 of the criminal law? Illegal absorption of public deposits or disguised absorption of public deposits, disrupting financial order? It constitutes the crime of illegally absorbing public deposits. 20 10 The Supreme Court promulgated the Interpretation on Several Issues Concerning the Specific Application in the Trial of Criminal Cases of Illegal Fund-raising, which stipulated four constitutive elements of the crime of illegally absorbing public deposits or absorbing public deposits in disguised form: (1) absorbing funds without the legal approval of relevant departments or borrowing legal business forms; (2) Publicity to the public through media, promotion meetings, leaflets, mobile phone messages, etc. (3) Commitment to repay the principal and interest or pay the return in the form of currency, material object and equity. In a certain period of time; (4) To absorb funds from the public, that is, unspecified social objects, it is stipulated that there must be four elements to constitute this crime. Article 3 of the Interpretation stipulates that if anyone illegally absorbs public deposits in any of the following circumstances, he shall be investigated for criminal responsibility according to law: (1) If an individual illegally absorbs or disguises public deposits with an amount of more than 200,000 yuan, the unit illegally absorbs or disguises public deposits with an amount of more than 1 10,000 yuan; (2) Individuals illegally or disguised to absorb more than 30 public deposit objects, and units illegally or disguised to absorb more than 150 public deposit objects. Article 3 of the Interpretation stipulates that: illegal absorption or disguised absorption of public deposits is mainly used for normal production and business activities, and the absorbed funds can be repaid in time, which can be exempted from criminal punishment; If the circumstances are obviously minor, it shall not be treated as a crime.

In practice, in order to avoid this crime, firstly, the platform does not build a pool of funds, and the P2P platform entrusts investors' investment funds to third-party payment institutions, and investors' funds directly enter and exit third-party accounts, which is a pure intermediary platform; The second is to designate registered public investors through the website, so that public investors can become private investors; Iii. The number of investors in each financial leasing project is limited, with a maximum of150; Fourth, the financial leasing project is divided into multiple projects, and one project is financed many times (this is also a negative response that must be taken at present).

(VI) The financial leasing company and its shareholders set up a P2P platform to finance their projects.

In practice, there is a trend that more and more large financial leasing companies or their shareholders set up P2P platforms to finance their financial leasing projects. The most typical one is Anhui Yucheng Financial Leasing Co., Ltd.? E-rental? P2P peer-to-peer lending platform. Many creditor's rights transfer or usufruct transfer projects initiated by the platform are lease projects of Anhui Yucheng Financial Leasing Co., Ltd., which established P2P platform. This involves how to treat related party transactions and platform self-integration.

The author believes that, as someone said, related party transactions are also legal and illegal. Legal related party transactions can save a lot of transaction costs and improve transaction efficiency in business negotiations. However, illegal related party transactions have harmed the interests of the company, minority shareholders or corporate creditors. By transferring the financial leasing creditor's rights, the e-Lease platform has achieved a win-win situation among investors, lessees and financial leasing companies, and there is no harm to the interests of the company, shareholders or creditors. As an independent legal entity, P2P platform operates relatively independently, so long as it does not harm the interests of any party, it is allowed by law.

The so-called P2P platform is self-financing, which mainly refers to network technology companies whose main source of income is to match other people's business transactions and whose sole business is P2P online lending. The funds of third-party investors are used to enter the financing party and illegally fall into the platform's own pocket, which not only harms the interests of investors, but also harms the interests of financiers, making all the funds of investors not enter the financing project, affecting the project income of financiers and causing the loss of financiers' interests. Of course, if a P2P platform like e-Rent Bao finances itself or its shareholders, and finally absconds with money, which constitutes criminal responsibility, it should still be convicted and punished for the crime of fund-raising fraud or illegally absorbing public deposits.

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