关键词: 融资租赁； 功能主义； 担保物权实现程序； 合同解除； 清算义务

Abstract: In terms of the lessors right remedy in the financial leasing contract, Article 752 of the Civil Code has designed two remedial approaches: accelerated expiration of the rent and “termination of the contract and repossession of the leased property”. However, in the legislative model that combines formalism and functionalism, there is still considerable room for interpretation on how to assert claims for the two different remedial approaches, and how to balance the interests of various parties on the contract level as well as in the realization of the guarantee function. When the lessee is in fundamental breach of contract, the lessor can only exercise one of the two, but not both. When the lessor requests payment of all rent, compensation from the proceeds of the auction or sale of the leased property is prioritized based on the general civil litigation procedure or the nonlitigation enforcement procedure. This remedial approach is a product of functionalism, and still needs to be coordinated with the movable property security system. When the lessor claims to terminate the contract and take back the leased property, the security function of the financial leasing contract cannot continue to be maintained, and the lessors ownership of the leased property has been “desecured”. This remedial approach clearly has a formalistic character, but based on the institutional demand for the unjustified return, the lessor still has a liquidation obligation regarding the value of the leased property after termination of the contract.

Key words: financial lease; functionalism; procedure for the realization of a security right; contract termination; obligation to liquidate