Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Licensing and Supervision of Leasing Activity (Part 2)
by Steven Gilyeart, Editor, The International Leasing Resource
1 February 1999. Please Note: This article is the second in a series.
The Definition of Finance Lease for Regulatory Purposes Since only financial leasing should be regulated, the contours of the regulatory landscape will be determined by the definition of what constitutes a finance or financial lease. The two most distinguishing and relevant characteristics of a finance lease are that: (1) the lessee has selected the equipment and the supplier; and (2) the lessor has acquired the equipment specifically for lease to the lessee. The proper definition stops at that point--if it is defining a finance lease for commercial, transactional law purposes. These are the two distinguishing characteristics that justify different financial lease transactional rules than those usually attendant to traditional rentals. These different rules for finance leases include, are but not limited to, the lessor having no responsibility for equipment defects (the lessee must take those complaints directly to the supplier) and the lessee having an absolute duty to pay rent once it accepts the equipment. No further distinguishing characteristics are relevant for the purpose of making a different allocation of rights and responsibilities for those involved in the lease transaction. Nevertheless, a number of financial leasing laws, not necessarily involved with lease licensing and regulation, including the Unidroit Convention on International Financial Leasing, go further and reference the existence of full-payout status and/or nominal purchase options at the end of the lease term.
Nominal Purchase Options Nominal purchase options do render a lease transaction the functional equivalent of a loan, or in other words, describe a simple finance lease, in that they remove the sine qua non or hallmark of a true lease: the retention by the lessor, as of the inception of the lease, of a significant residual interest. Thus, in seeking to encompass simple finance leases in the regulatory scheme, the inclusion of the existence of a nominal purchase option in the definition would be appropriate. For example, in France leasing with a purchase option (credit-bail) is regulated but leasing without a purchase option (location financiere) is not. This would also be true for the most nominal purchase option at all, the transfer of the title to the equipment at the end of the lease for no additional payment or consideration at all. However, these items should still not be included in the transactional law definition of finance lease. Of course, this illustrates the third principle mentioned in the prior artilce: that the definition of finance lease for regulatory purposes can and should be different than the one in the transactional law.
Full Payout Status Full-payout status involves a different definitional issue. Full-payout status refers to the economic circumstance that the lessor will recover, in that first lease of the equipment, all or substantially all of its initial equipment cost and receive a profit from that expenditure. In short, the lessor "has been fully paid-out of its investment' in that single, initial transaction, hence the expression "full-payout lease." Please note that this status make no reference to the existence or absence of purchase options. While many full-payout leases many indeed have a nominal purchase option at the end of the lease term or a transfer of title for no additional consideration, such end of term treatments are not critical. In fact, the equipment may still have a significant residual remaining and the lessor may want to retain it, providing the lessor with a greater profit. Such a full-payout lease remains a true lease, albeit, one that is more expensive to the lessee because the lessor is not using the residual to subsidize and reduce the lease payments. Full payout status does not tell us anything about whether or not the lease is a true lease; it simply tells us how quickly the lessor makes a profit. Thus, it is irrelevant for distinguishing leases for the purpose of transactional rules. It is also irrelevant for regulatory purposes. The major threat to a financial institution's solvency is that the loans it has made will not be repaid, and that the collateral taken to secure the loans, is inadequate to cover them. In the context of a lease, one of the major threats to a financial institution that engages in leasing is that the institution might assume too great a residual position (i.e., exposure). . If the institution then uses that residual assumption to reduce the lease payments, it begins to take on an asset risk as well as the credit risk. In fact, the credit risk has not declined, but a risk that was not there before, the asset risk, is there now and has increased. However, if the lease is full-payout and the lessor retains the residual, it has actually increased its security in the transaction and its ability to be repaid. Stated another way, full-payout status reduces the threat to institution insolvency and therefore reduces the need for regulation. Thus, full-payout status need not and should not be part of the definition of finance lease for regulatory purposes, any more than it should be a consideration for the definition for transactional rule purposes.
Regulation of Leasing in Emerging Markets Leasing has a tendency to be more regulated in emerging markets and unregulated in mature markets. This is partly explained by history. Leasing developed quietly in the United States and certain European countries without much attention from the government. This was possible because the banking laws were not written in such a way that leasing activity fell within the legal definition of banking activity that was reserved for business enterprises that had a banking or other financial institution license.
Regulation of "Financial Activity" However, in a number of countries, particularly those with emerging markets, the definition of "financial activity" for which a banking or financial institution license is needed either directly or indirectly includes leasing activity. Most national banking acts contain a "list" of activities considered to be sufficiently "banking like" so as to require a "banking type" license from the central financial authority. Such a list includes the obvious, such as taking deposits, granting loans and the like, but leasing may or may not be specifically mentioned. If it is, then clearly a license is required. However, the usual situation is a bit more ambiguous, with a generalized focus upon the credit-extension elements of the activity. As financial leasing definitely has a strong credit-extension/financing element, it would then be encompassed by such a definition. Sometimes the term "financial leasing" will be used without a definition being supplied. The goal in that instance is usually to distinguish it from traditional rentals. Traditional rental activity is never subject to banking regulation.
Leasing as a Licensed and Regulated Financial Activity Nevertheless, it is generally advisable that leasing in emerging markets be licensed and, ultimately, mildly supervised, for the reason that the public usually perceives leasing to be a financial product and leasing companies to be part of the financial sector, along with banks. Because of that perception, a spectacular failure of a lease company, even though it is not accepting public deposits, has the possibility of impairing the public's confidence in banks. This perception is somewhat unique to emerging markets and does not exist in mature markets, where leasing is well understood to be its own unique service sector activity. A lease company failure in a mature market will not have an impact on the banking public. However, if leasing companies are not allowed to accept public deposits (and they generally should not be, for reasons that will be discussed later), heavy "bank style' regulation is inappropriate and inadvisable. The "mild supervision" needed involves mostly the maintenance of certain prudential norms, such as minimum capital requirements, gearing limitations, single customer exposures and the like. Nevertheless, depending upon how the banking laws encompass leasing, leasing may not receive any "special case" treatment and instead will be subsumed by the broadly applicable and more stringent banking regulations. This is more likely if leasing is simply ensnared by the definition of regulated financial activity than if it is has its own special mention and definition in the regulatory legal structure. Yet, the more common situation is that leasing is just not mentioned at all in the banking laws. In that instance, leasing may be able to start spontaneously under a standard, corporate business charter available to almost any kind of business. If financial leasing has already started in an emerging market country without licensing and supervision, it may be best to let it develop further without interference. This will be particularly true if the central bank or ministry of finance, the two most common regulatory bodies, does not have an existing non-bank financial institution (NBFI) structure already in place in its organization. Some banking laws may also not recognize the existence of NBFIs.
Click here for next article in this series
Updated 11 February 1999
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