Subject of the financial lease (leasing) agreement

The subject of a finance lease is only non-consumable things that can be used in entrepreneurial activity. Usually these are mechanisms, machines, equipment, other things that are non-consumable, i.e. do not disappear during their use Art. 666 GK.

The subject of a leasing agreement can be both movable and immovable property. However, neither land plots nor other natural objects (for example, rivers, lakes, subsoil plots, mining allotments, forests, etc.) can act as a lease object.

The withdrawal of land plots from the range of objects that can be involved in circulation as a subject of leasing is explained by the fact that the use of land and other natural objects for business purposes and transactions with them are regulated by special (land) legislation, and also by the fact that the lease of these objects regulated by special agreements that have their own specifics.

The Law on Leasing establishes that the leasing agreement must contain data that can be used to identify the property to be transferred to the lessor under the leasing agreement as its subject. Otherwise, the leasing agreement is not considered to be concluded Art. 15 of the Leasing Law.

The subject matter of a financial lease agreement is significantly narrowed due to the entrepreneurial purpose of using the thing that is the subject of the lease.

This also excludes the possibility of involving objects in civil circulation for the purpose of their subsequent use not in commercial activities, but in professional ones.

The subject of leasing cannot be property that, in accordance with federal laws, is prohibited for free circulation or for which a special procedure for circulation has been established. As follows from the general provision enshrined in paragraph 1 of Art. 607 of the Civil Code of the Russian Federation, the law may establish types of property that are unacceptable for leasing or leasing for which is limited.

According to the provisions of part 1 of Art. 129 of the Civil Code of the Russian Federation, objects of civil rights, depending on their negotiability, are divided into three groups:

objects free in circulation;

objects withdrawn from circulation, the types of which must be directly indicated in the law;

objects of restricted circulation, i.e. objects of civil rights that may belong only to certain participants in the circulation or which may be in circulation only with a special permit, and their types are determined by a special procedure for circulation.

Interestingly, the possibility of leasing property rights was provided for in paragraph 1 of Decree of the President of the Russian Federation of September 17, 1994 N 1929 (adopted before part two of the Civil Code of the Russian Federation).

It is recognized in the literature that even a right can be the object of rent, if only the use of it can bring economic benefits.

The concept of incorporeal property (incorporeal things) considers as the subject of leasing mainly rights that have value and monetary value and representing an "ideal" property object. Property rights are used in commercial practice, being the subject of various transactions.

Their operation and commercial transfer are becoming an increasingly important factor in managing, pushing operations with real things into the background.

From the standpoint of civil law, it is recognized as unacceptable to involve in civil circulation as a subject of leasing such benefits as the right to use the results of intellectual activity and shares (shares) business companies due to the definition of leasing in the Civil Code of the Russian Federation as a type of lease.

According to paragraph 1 of Decree of the President of the Russian Federation of September 17, 1994 N 1929 "On the development of financial leasing in investment activities", as well as paragraph 2 of the Temporary Regulation on leasing, approved by Decree of the Government of the Russian Federation of June 29, 1995 N 633 "On the development leasing in investment activities", the subject of leasing can be any property, whether movable or immovable, related to fixed assets according to the current classification (except for property prohibited for free circulation on the market), as well as property rights. In addition, it follows from this that the said normative acts also did not exclude land plots from the range of possible leasing subjects.

The parties to the contract must accurately describe the thing, based on special features - color, size, shape, model. Additionally, technical numbers, registration numbers of manufacturers, etc. are indicated.

However, the interests of the parties will be observed if the thing transferred by the seller to the lessee complies with the terms of the contract of sale, the goods under which can be (and in most cases is) a replaceable thing, individualized only at the time of its transfer.

In the leasing agreement of the enterprise, the parties must necessarily reflect the fate of the debts of the leased enterprise. When the lessee buys out the leased enterprise, the failure to reflect in the leasing agreement (or the sale and purchase of the leased enterprise, if the original leasing agreement does not contain buyout conditions) provisions on the debts of the enterprise may later lead to serious disputes between the parties to the leasing agreement, since, in particular, in accordance with paragraph. 3 Article. 565 of the Civil Code of the Russian Federation, the buyer (lessee) will have the right to demand a reduction in the purchase (redemption) price of the enterprise if debts are found in the enterprise that were not indicated, and the seller (lessor) will have the right to raise objections regarding the fact that the lessee knew about these debts .

Another feature of leasing enterprises, unlike other types of leasing property, is that in most cases, leasing an enterprise requires the consent of the relevant territorial antimonopoly authority.

For the period of leasing, an enterprise - a property complex, as follows from civil and tax legislation, becomes a separate subdivision of a legal entity. In accordance with paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, branches must be indicated in the constituent documents of the legal entity that created them, i.e. the lessee will need to make appropriate changes to the charter.

In the Federal Law of June 23, 1999 N 117-FZ "On Protection of Competition in the Financial Services Market", leasing activity is treated as a financial service. A similar approach was used in the newly adopted Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition".

The recognition of leasing for civil law purposes as a financial service (which seems more reasonable than the assumption under the current Civil Code of the Russian Federation of the lease of rights) would expand the range of objects involved in civil circulation based on the fundamental idea of ​​leasing.

A market economy uses a whole range of credit and financial instruments. One of these tools is financial leasing, thanks to which a business is able to get new opportunities for growth and modernization of its activities.​

Leasing is translated from English as "rent". Financial leasing, as a type of investment activity, is aimed at acquiring property (fixed assets) and transferring it under a leasing agreement to legal or individuals for use for a certain fee, for a specified period and on the terms of the contract, with the right to purchase the property by the lessee.

The period for which the lessee receives the property should not exceed the period of its full depreciation.

That's an example classical leasing relations, which explains the difference between leasing and renting, where only two entities are involved: the tenant and the landlord.

In addition to financial leasing, there is the concept of operational leasing. The term of such leasing is less than the depreciation period of the property. Upon its completion, the property is either returned to the owner, or transferred for temporary use. The most widespread is the operational leasing of passenger, freight and passenger vehicles.

International financial leasing agreement

AT modern world developing rapidly international legal relations. International financial leasing is a special leasing relationship, which involve the participation of actors from different countries.

It, in turn, is divided into: straight(the agreement is concluded between subjects of different states) and indirect(when the property is imported or the capital of the lessor is partially controlled by a foreign state).

Also, international leasing can be divided into import and export. With export, the foreign party is the lessor, with import - the lessee.

The international financial leasing agreement - the sample is located

The growth in the volume of international leasing and its spread is quite natural, and is associated with financial globalization, the integration of economies and high competition in the credit sector. This type of leasing attracts foreign investment in the country's economy, and also allows the use of modern equipment and technologies.

Financial leasing, as a financing tool, opens up many prospects for business growth and modernization. Its use allows the latest technology, equipment and machinery, which guarantees a competitive advantage in the activities of entrepreneurs.

Financial leasing: what it is and how fast leasing is developing in Russia, you can find out in the following video:

In accordance with Art. 666 of the Civil Code of the Russian Federation the subject of a leasing agreement are any non-consumable things, except for land plots and other natural objects. Non-consumable things are things that do not disappear in the process of their use, so any non-consumable property can be the subject of leasing. The contract must specify the individual features and characteristics of the property, allowing it to be distinguished from other items similar to it. They can be serial number, date of manufacture (release), identification number, location, etc. In the absence of these data in the contract, the condition on the subject of leasing is considered not agreed by the parties, and the contract is not considered concluded (clause 3 of article 15 of the Federal Law of October 29, 1998 N 164-FZ "On financial lease (leasing)"). The subject of a leasing agreement cannot be property rights, works and services, information, results of intellectual activity, intangible benefits.

Any acquired property is taken into account on the balance sheet of the organization. In practice, the subject of leasing is usually accounted for on the balance sheet of the lessor, but can be accounted for on the balance sheet of the lessee by mutual agreement of the parties to the agreement. When evaluating a leasing agreement, it should be taken into account that the financing of fixed assets through leasing will reduce the tax burden of the enterprise. In particular, payments under leasing agreements reduce the tax base for income tax. In addition, accelerated depreciation (with a factor of 3) allows the balance holder to reduce the base for calculating property tax and further reduce the base for calculating income tax. Planning VAT flows for leasing requires a careful approach in accordance with current regulations and, sometimes, can provide additional benefits.

Subject of leasing(e.g. vehicles, high-risk equipment) may be subject to registration with government authorities. In this case, the leasing agreement should indicate in whose name the item is registered: the lessor or the lessee. When registering, information about the owner (lessor) and the user of the property (lessee) must be indicated (Article 20 of the Federal Law of October 29, 1998 N 164-FZ "On financial lease (leasing)").

The subject of leasing can be insured against the risks of loss (destruction), shortage or damage from the moment the property is delivered by the seller until the expiration of the lease agreement by the lessee or lessor in favor of one of the parties (clause 1.2 of article 21 of the Federal Law of October 29, 1998 N 164-FZ "On financial lease (leasing)").

Subject of leasing is transferred to the lessee together with all its accessories and with all documents (technical passport and others), unless otherwise provided by the contract. In practice, the obligation to carry out maintenance, overhaul and current repairs lies with the lessee. However, the parties may provide for the obligation of the lessor to carry out current repairs and maintenance or major repairs (clause 2.3 of article 17 of the Federal Law of October 29, 1998 N 164-FZ "On financial lease (leasing)").

In the leasing agreement, it is desirable for the parties to provide for a condition on the separable and inseparable improvements made by the lessee to the leased asset. The main difference between inseparable improvements and separable improvements is the impossibility of separating them from the leased asset without causing harm and the impossibility of using them separately from it. In practice, there are difficulties in assessing the separability/inseparability of improvements, which is subjective. When determining the type of improvements made, one can be guided, in particular, by the amount of costs for dismantling and bringing the leased property to its original state, taking into account normal wear and tear. If the costs of dismantling are significant (exceeding or equal to the cost of improvements), then such improvements should be qualified as inseparable.

Separable improvements made by the lessee to the subject of leasing are almost always his property, although the leasing agreement may provide otherwise. And in the case of inseparable improvements of the leased asset made by the lessee, their owner is the lessor. However, the parties may provide for a provision that the lessee is entitled to reimbursement for the cost of such improvements made with the consent in writing of the lessor (clause 7.8 of article 17 of the Federal Law of October 29, 1998 N 164-FZ "On financial lease ( leasing)").

The lease agreement may provide for the transfer of ownership of subject of leasing to the lessee. This happens on the basis of a sales contract or an additional agreement to the contract between the lessor and the lessee. The redemption price at which the leased asset is purchased may be included in total amount of the contract or specified separately in the contract of sale or additional agreement of the parties. In case of redemption of property by the lessee, the parties must specify this condition in detail in the leasing agreement.

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FEATURES OF A FINANCIAL LEASE (LEASE) AGREEMENT IN RUSSIAN CIVIL LAW

Legal regulation of the procedure for concluding and terminating a financial lease (leasing) agreement

The preparation of a leasing transaction is usually accompanied by the execution of a whole package of documents, which is traditional for the development of large investment projects. As part of the initial phase of the transaction, the future lessee must prepare a business plan, a forecast of the company's profit dynamics, taking into account the use of new equipment, a cash flow forecast, a plan for installing and using equipment, etc.

The key factor, according to the researchers, in the preparation of the contract is a thorough analysis financial condition the future lessee, the prospects of the field of activity in which he is involved, and the possibility of establishing trusting, interpersonal relationships with him. All this together increases the time of registration of leasing transactions and increases transaction costs, which not every potential client of the leasing company can pay for, Golovchenko, A.I. Legal regulation of leasing relations. - St. Petersburg: Norma-Infa, 2006.-S. 86..

The Civil Code of the Russian Federation does not establish special requirements for the form of a leasing agreement, however, Art. 15 of the Leasing Law specifies that the form must be in writing. This is reflected, among other things, in the procedure for concluding a contract.

So, written form of the agreement is considered to be complied with, provided that the person who has received the offer, within the time period established for its acceptance, takes actions to fulfill the conditions of the agreement specified in it, unless otherwise provided in the offer or established by law or other legal act (clause 3 of Art. 434 of the Civil Code of the Russian Federation). It should be taken into account, as V.A. Abramov, that in order to recognize the relevant actions of the addressee of the offer by acceptance of the Civil Code of the Russian Federation, it does not require the fulfillment of the terms of the offer in full Abramov, V.A. Deals and contracts. Comments. Clarifications. -M.: Statute, 2007.-S. 35. For these purposes, in order to qualify the indicated actions as an acceptance, it is sufficient that the person who received the offer (including the draft contract) starts its execution, on the conditions specified in the offer and within the time period established for its acceptance.

In matters of determining the moment of conclusion of the contract arbitrage practice proceeds in such a way that the contract is recognized as concluded if the parties have actually begun to fulfill the contractual terms.

By virtue of Art. 20 of the Law on Leasing, in cases provided for by the legislation of the Russian Federation, the rights to property that is leased, and (or) a leasing agreement, the subject of which is this property, are subject to state registration.

The legislator provides greater freedom to the parties in determining mutual rights and obligations regarding registration. Thus, the parties, by mutual agreement, can determine who will bear the legal consequences of registering the contract. Representation of the parties in the registration process is also allowed. These provisions, in our opinion, testify to the further division of the owner's powers under this agreement, which results in the fact that the actual owner (lessor) can be relieved of registration obligations with the transfer of these obligations to the lessee.

As commentators note, Commentary on the Federal Law of October 29, 1998 No. 164-FZ "On Financial Lease (Leasing)" / Sapozhnikova, Yu.V. -M.: Yustitsinform, 2010.-S. 27-28., the current legislation provides for mandatory state registration of certain transactions and real rights to certain types of things, whereby Art. 20 contains an indication of the need to apply this law in appropriate cases.

State registration of transactions with land and other real estate is established in cases provided for by law (Article 164 of the Civil Code of the Russian Federation). State registration is subject to the right of ownership and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination, and this does not necessarily mean that transactions that entail such consequences are also subject to registration.

The Civil Code of the Russian Federation directly provides for the need for state registration of transactions in the following cases: mortgage (clause 3 of article 339), sale of residential premises (clause 2 of article 558), sale of an enterprise (clause 3 of article 560), gift agreement real estate(Clause 3, Article 574), rent for the alienation of real estate (Article 584), lease of real estate (except in cases established by law) (Article 609), lease of buildings and structures for a period of at least one year (Clause 584). 2 article 651), lease of enterprises (clause 3 article 658), trust management of real estate, the sale of which requires state registration (article 1017).

Thus, a real estate leasing agreement is subject to mandatory state registration by virtue of Art. 609 of the Civil Code of the Russian Federation, since the Leasing Law does not provide for exceptions to the rule established by Art. 20 of the Law.

The definition of a financial lease (leasing) agreement is given in Article 665 of the Civil Code Russian Federation and Article 2 of the said Federal Law.

According to the rules of Article 4, Clauses 2, 4 of Article 15 of the mentioned Federal Law, the lessor is an individual or entity, which due to attracted and (or) own funds acquires property during the implementation of the leasing agreement and provides it as the subject of leasing to the lessee for a certain fee for a certain period and on certain conditions for temporary possession and use with or without transfer of ownership of the leased asset to the lessee.

To fulfill their obligations under a leasing agreement, leasing entities enter into binding and related agreements. A binding contract is a contract of sale.

On the basis of a leasing agreement, the lessor undertakes to acquire certain property from a certain seller in order to transfer it for a certain fee for a certain period, under certain conditions, as a subject of leasing to the lessee.

It has already been mentioned that leasing can be used and government bodies to meet the interests of a specially defined category of consumers-lessees. At the same time, in accordance with the law, the conclusion of contracts in order to meet state needs is carried out on a competitive basis. However, in this case the legislator acted in a different way, through a competition determining the Decree of the Government of the Russian Federation of April 27, 1999 N 467 "On measures for state support of leasing agricultural machinery and equipment" (as amended on June 6, 2002) // Collection of Legislation of the Russian Federation. -1999. -N 18. -St. 2299. lessor and requirements for lessees.

In my opinion, in order to implement national tasks in the implementation of leasing (for example, the technical re-equipment of enterprises in strategic important industries industry) as a lessor, it is advisable to use such an economic entity as a unitary enterprise. In accordance with the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises" Collection of Legislation of the Russian Federation. -2002. -N 48. -St. 4746. (as amended December 8, 2003) legal status state-owned enterprise allows to carry out deliberately non-profit activities (Article 8). This will limit the amount of lease payments to the cost of the leased asset.

At the same time, according to some researchers Mezentsev, K.Yu.. Legal status participants in leasing relations: diss. cand. jurisprudence: 12.00.03: protected 02.12.09.: approved. 06/24/09. - St. Petersburg, 2009. - 190 p. - Bibliography: P. 94., a person with the right of economic management or operational management cannot be a lessor: state and municipal unitary enterprises, state-owned enterprises, institutions. The lessor may be a person who is or will be the owner of the object of leasing. State and municipal unitary enterprises cannot act as lessors, since they cannot acquire ownership of property and dispose of it independently.

The performance of the leasing agreement takes place in accordance with the terms of the agreement and the general provisions on the performance of obligations. As Arsentyeva E.V. notes, the main principles for fulfilling obligations under a leasing agreement are:

• 1. Performing properly.
• 2. Reality
• 3. Urgency.
• 4. Responsibility.
• 5. Payment Arsent'eva, E.V. Leasing agreement in the modern civil law of Russia and foreign countries. Abstract diss. Candidate of Legal Sciences -Kazan, 2003. -S. 12..

Special attention in the main regulations in the field of leasing is given to the termination of the leasing agreement.

Chapter 29 of the Civil Code of the Russian Federation regulates the amendment and termination of civil law contracts. The provisions provided for in Chapter 29 of the Civil Code on the methods, grounds and procedure for terminating (changing) an agreement equally apply to a leasing agreement.

Usually, a change in the contract is understood as a situation when any of the conditions in the contract changes so that, however, at least the parties always remain the same (for example, a change in the method, term, place of performance, etc.) Civil law : textbook: in 3 volumes. T. 2 / ed. A.P. Sergeeva, Yu.K. Tolstoy. 4th ed., revised. and add., -M.: Prospect, 2005 -S.539 .. Thus, we are talking about an internal change that occurs within the framework of the original contractual legal relationship.

With regard to the termination of the contract, this is an act of will or an act aimed at terminating, in part or in full, the unfulfilled contract, and thus the obligations arising from it for the future. Upon termination of the contract, the contractual obligations of the parties cease for the future. This sign makes it possible to distinguish the termination of the contract from the recognition of it as invalid or not concluded. Upon termination of the contract, the circumstances that serve as the basis for this appear after the conclusion of the contract, and only from the moment of termination the obligations of the parties cease for the future, since before they appear, the parties act in the legal field outlined by law or the contract.

It is possible to terminate only a partially or completely unfulfilled contract, since proper performance terminates the contractual process and eliminates the contractual relationship between the parties established within the framework of contractual obligations. If the obligations of the parties under the contract are fully fulfilled, the contract cannot be terminated. Until all the conditions of the contract are fulfilled to the end, the possibility of its termination remains. Somenkov, S.A. Termination of the contract under the civil legislation of the Russian Federation. Abstract diss. cand. legal Sciences. -M., 1999. -S. ten..

By general rule change and termination of the contract are possible by agreement of the parties (paragraph 1 of article 450 of the Civil Code). However, the Civil Code, other laws, the contract itself may provide otherwise. For example, in accordance with paragraph 2 of Art. 430 of the Civil Code, from the moment the third party expresses its intention to the debtor to exercise its right under the contract, the parties cannot terminate or change the contract they have concluded in favor of the third party without his consent, unless otherwise provided by law, other legal acts or the contract. Termination and modification of the contract by agreement of the parties least of all requires legal regulation due to its non-conflict, since there is no dispute between the parties regarding the change or early termination of the contract and the conditions under which this should happen, this agreement is essentially a kind of agreement on changing or terminating the contract.

Civil legislation contains both general provisions for terminating a contract (Article 450 of the Civil Code of the Russian Federation) and special rules regarding terminating a lease agreement. It seems that the wording of Art. 13 of the Law on Leasing allows you to use both cases.

The provisions of Art. 450 of the Civil Code of the Russian Federation we have analyzed above, we will focus on the rules of Art. 619 of the Civil Code of the Russian Federation. Article 619 of the Civil Code of the Russian Federation, which regulates the general provisions on leases, including financial ones, specifies specific grounds for early termination of the contract by the lessor. As a rule, these grounds for terminating the contract are in the nature of deciphering the concept of "material breach of contract" in relation to lease relations. In particular, at the request of the lessor, the lease agreement may be prematurely terminated by the court in the event that the tenant: uses the property with a material violation of the terms of the agreement or the purpose of the property, or with repeated violations; materially violates property; fails to pay the rent more than twice in a row after the expiration of the payment term established by the agreement; does not carry out major repairs of property within the terms established by the lease agreement, and in the absence of them in the contract within a reasonable time in those cases when, in accordance with the law, other legal acts or the contract, capital repairs are the responsibility of the tenant.

The grounds for terminating a leasing agreement may also be failure to perform or improper execution obligations on the part of the lessor. So, the Civil Code of the Russian Federation in Art. 668 indicates that in the case when the property that is the subject of a financial lease agreement is not transferred to the tenant within the period specified in this agreement, and if such a period is not specified in the agreement, within a reasonable time, the tenant has the right, if the delay is due to circumstances for which he is responsible landlord, demand termination of the contract and compensation for damages.

Failure to fulfill obligations by the lessor can take place, mainly, only in connection with non-payment of the leased asset to the seller. In addition, the lessee may demand termination of the lease agreement if the leased property is not delivered or delivered late, or does not comply with the terms of the supply agreement.

The Law on Leasing generally does not provide for cases of early termination of a leasing agreement at the request of the lessee. In this regard, in practice, the parties to the leasing agreement should also be guided by Art. 620 of the Civil Code, which provides for the possibility of terminating the lease agreement at the request of the tenant.

The lessee may demand termination of the contract even if the property transferred to him by the seller has shortcomings that prevent the use of it, which were not specified by the lessor when concluding the contract, were not known to the lessee in advance and should not have been discovered by the lessee during the inspection of the property, if the responsibility for the choice the seller lies with the lessor.

In contrast to paragraph 1 of Art. 620 of the Civil Code, clause 2 of Article 668 of the Civil Code does not indicate such a basis for terminating the contract as the creation by the lessor of obstacles to the use of the leased asset. Obviously, this ground is also applicable to the lease agreement.

A very special case is the change and termination of the contract due to a significant change in circumstances. A change in circumstances is recognized as significant when they have changed so much that, if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on significantly different conditions (Article 451 of the Civil Code).

This definition is abstract. It is difficult to name specific events, phenomena, facts that can be recognized as a significant change in the circumstances from which the parties proceeded when concluding the contract. At the same time, there is a certain guideline in the Civil Code of the Russian Federation: in order for any change in circumstances to be classified as significant and thus sufficient for changing or terminating the contract, four conditions must be present simultaneously.

First, the parties at the conclusion of the contract proceeded from the fact that such a change in circumstances would not occur. For example, inflation is not a significant change in circumstances and the basis for terminating or changing the contract if its level was predicted with sufficient accuracy at the relevant moment by stock exchange specialists or other professionals. Such information is sufficiently accessible, and the parties to the contract, especially entrepreneurs, cannot plead its absence. If inflation significantly (for example, 1.5-2 times) exceeds the normal expected currency rate by that time, inflation can be considered a significant change in the circumstances from which the parties proceeded when concluding the contract and the basis for its imputation or termination. An example is the sharp depreciation of the ruble after August 17, 1998.

Secondly, the change in circumstances must be caused by reasons that the interested party could not overcome after they arose with the degree of care and diligence that was required of it by the nature of the contract and the terms of the turnover.

Thirdly, the execution of the contract without changing its terms would so violate the correlation of the property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract.

And fourth necessary condition it does not follow from the customs of business transactions or the essence of the contract that the risk of changes in circumstances is borne by the interested party, that is, the party that applied to the court with a request to change or terminate the contract.

Thus, if the court does not establish that there has not been a significant change in circumstances, then the contract remains in force in its original form, and the parties must bear all the rights and obligations arising from it. If the fact of a significant change in circumstances is established by the court, then the fate of the contract can be decided in two ways: either it is terminated; or modified accordingly.

If the interested party applied to the court with a request to terminate the contract, the contract will be terminated. However, paragraph 4 of Art. 451 of the Civil Code provides that if the termination of the contract is contrary to public interests or will entail damage to the parties that significantly exceeds the costs necessary to execute the contract on conditions changed by the court, the court has the right only to change the terms of the contract.

In the literature on this subject, the opinion was expressed that the option of changing the contract requires the court to analyze all possible aspects of the situation in more depth. In this regard, the courts are unlikely to give preference to changing the contract before terminating itKomarov, A.S. Actual problems civil law, Ed. M.I. Braginsky. -M., 2006, p.102. This can also be explained by the fact that, by making a decision to change the contract, the court thereby obliges the party to execute the contract on conditions that it obviously considers unacceptable for itself.

Clause 1, Art. 670 of the Civil Code, according to which the lessor and the lessee in relation to the supplier of property act as solidary creditors. This means that each of them, on the basis of Art. 326 of the Civil Code may present joint and several claims to the supplier in full. If the delivered leasing property turns out to be of inadequate quality, then these solidarity claims, among others (payment of a penalty - Article 394 of the Civil Code, compensation for losses - Article 15 and Article 393 of the Civil Code) will also be based on Article 475 of the Civil Code.

The leasing agreement may stipulate circumstances that the parties consider to be an indisputable and obvious breach of obligations and which lead to the termination of the leasing agreement and the withdrawal of the leased asset. As a rule, the agreements indicate as the grounds for early termination and withdrawal of the leased asset non-payment of lease payments more than twice in a row, irregular payment of lease payments, significant and (or) repeated violation of the terms of use of property, significant deterioration of property, transfer of property to subleasing without the consent of the lessor, etc. Nothing prevents including among such grounds the use by the lessee of the object of leasing not for the intended purpose agreed in the leasing agreement. The requirement to terminate the contract and return the leased asset may also be filed if the leased asset is used for non-business purposes.

The courts, satisfying the lessor's claims for the return of the leased asset, are obliged to check whether there are grounds for early termination of the contract. In the absence of such, the claim for seizure of property must be denied.

If the court satisfies the requirement for early termination of the contract, the subject of leasing must be returned by the lessee within a reasonable time. It is clear that in the text of the Law it was impossible to determine any precise criteria for what should be the duration of the period recognized as reasonable. We are talking about the work to be performed by the lessee to return the property, the costs that he must incur in connection with the return of the property, the losses that should be prevented in connection with the fulfillment of this requirement, the time required to deliver the property to the lessor or the person specified by him, and etc. Thus, the duration of this period should be determined by the disputing parties themselves, and if an agreement is not reached, by the court. -M.: Yustitsinform, 2010. -S. 43..

Thus, the leasing agreement has certain features of the process of conclusion and termination. However, these features are fully consistent with the principles of the civil legislation of the Russian Federation, and in some cases are regulated by general rules. In addition, the legislator allowed the parties to independently determine the grounds for terminating the contract, which makes it possible to fix additional guarantees in the contract for the observance of the interests of its participants.

LEGAL FEATURES OF A FINANCIAL LEASE (LEASE) AGREEMENT IN RUSSIAN CIVIL LAW

Classification of types of leasing and their legal features

AT scientific papers many classifications of types of leasing are presented: according to the legal features of contractual relations, according to the composition of the participants in the transaction, according to the degree of return on property, according to the terms of the leasing agreement. These signs depend on the realities of the economy and changes in legislation. Creating a stable classification base is quite problematic - the signs are often changed, formulated and regulated in our country and abroad in different ways.

The Law on Leasing presents two main forms - domestic and international leasing, Article 8 of the Law on Leasing is devoted to subleasing. At the same time, the classification of types of leasing, taking into account their characteristic features, is important for ensuring the effective operation of the leasing mechanism and has legal features: the method of its organization, the mechanism for attracting participants under a leasing agreement, and the legal relationship of the parties to the transaction depend on the assignment of a leasing transaction to one type or another. .

As a rule, leasing is divided into two main types - financial and operational, the remaining types are a kind of financial and operational leasing. In financial leasing - property is transferred for a period equal to (slightly shorter) the depreciation period; the right to choose the object of the contract, as well as the seller belongs to the lessee. lessor in without fail When acquiring property, he must notify the owner of the property (seller, manufacturer) that it is being acquired for leasing.

The goal of the lessor is to return the value of the property at the expense of leasing payments, cover the costs associated with the leasing transaction and make a profit from its activities.

Legal relations on financial leasing have their own characteristic features, the features are reflected in Table 3.

Table 3

Legal relations of financial leasing participants

	Implementation approach
Choice of the object of leasing and its seller
Acquisition of a leasing object	Full (partial) financing is carried out by the lessor, he also warns the seller about the transfer of the object to leasing
Legal relations of participants in a leasing transaction	The lessor and the lessee are solidary creditors in relation to the seller
The right to buy property	The right of redemption belongs to the lessee before the expiration of the contract
Service and property insurance	Carried out by the lessee
Risk of accidental death, damage and loss of property	Passes to the lessee from the moment of transfer of property
Lease term	As close as possible to the standard service life and payback
The volume of leasing payments for the period of the contract	The total cost of the leasing object in prices at the time of conclusion of the contract

In financial leasing with the attraction of funds (borrowing), both the procedures for acquiring property and the procedures for obtaining a bank guarantee, insurance, and collateral are of great importance.

Preference is given to operational leasing in the case when the economic entity (lessee) does not want (can not) bear the risks of long-term ownership and use of the leased property. The lessee may not be sure of his long-term solvency; he may not have the funds to purchase property, and may not have professionally trained employees and a repair base; the client wants to make sure of the correctness of his choice of a certain type of equipment and machinery, or the lessee is engaged in seasonal agricultural work.

In operational leasing, the right to choose the subject of leasing from the lessee is limited by the availability of property from the lessor. Features of legal relations in operational leasing are reflected in Table 4.

Table 4

Features of operational leasing

	Implementation approach
Leasing property	Lessor's property
Right of the lessee	Return of property in case of early termination of the contract, there is no obligation to pay the entire amount of leasing payments for the period of the leasing transaction
Lease payment rates	Rates usually include the cost of service maintenance and are high
The term of the leasing transaction	Significantly shorter payback period
Operative leasing preferred	In the absence of funds, the lessee uses the object of leasing with payment in installments
Lessor risks	Compensation for the value of property in case of damage (death)
Lessee's guarantees	Ensure the established residual value of the property by the end of the contract

It should be noted the division of operational leasing according to the period of use of the property: renting, duration - from several hours to a year; hairing, duration - from six months to three years.

AT Russian legislation there are no systematic definitions of financial and operational leasing. The simplified division of leasing according to the degree of payback of leasing property is not correct, therefore it is advisable to note the significant differences between financial and operational leasing in Table 5.

Table 5

The main differences in the legal relations of financial and operational leasing

financial leasing	Operational leasing
The nature of the transaction - medium and long-term	Short- and medium-term nature of the transaction
As a rule, full depreciation of the value of the property	Partial depreciation of property, at the end of the contract, the subject of leasing can be leased again
Financing of the transaction by the lessor, transfer of all obligations for the ownership and use of property to the lessee	Participation of the lessor (under the contract) in the maintenance, repair, insurance of the leased object
Financial leasing offered by banks (subsidiaries of banks)	Operational leasing is offered by manufacturers of equipment, machinery, their affiliated leasing companies (trading companies)
The property is delivered by the seller directly to the lessee, bypassing the lessor	The property is delivered to the lessee directly by the lessor
The property and the seller are chosen by the lessee	The choice of property and the type of service is determined by the lessor
Claims for quality, completeness, correction of defects during the warranty period, the lessee sends to the seller	Claims for quality, completeness, correction of defects during the warranty period, the lessee sends to the lessor

The following types of financial leasing are quite complex in their execution: leasing “in a package” and leveraged leasing. Leasing in a "package" is a procedure for financing an enterprise, while buildings and structures are transferred on credit, and equipment is transferred to the lessee under a leasing agreement. Leverage leasing is always a significant amount of cash investment (capital investment), so the lessor takes a loan from a third party in the amount of 80-90% of the amount of the leasing transaction. As a rule, objects of housing and communal enterprises and equipment, railway trains, car fleet, drilling equipment and platforms, sea and river vessels are the object of a leasing transaction.

According to the Leasing Law, domestic and international leasing are the main forms of leasing. In the implementation of domestic leasing, the lessor and the lessee are residents of our country, in the case of international leasing, one of the parties to the leasing agreement is a non-resident. The location of the manufacturer (seller) of the leased property is not taken into account when determining the status of a lease as an international transaction.

Subleasing provides for the following: the main lessor leases property to the lessee through an intermediary - another leasing company. The intermediary company controls the use of property, accumulates lease payments, transfers them to the main lessor and performs other functions stipulated by the agreement. In the event of financial problems with the intermediary, lease payments must go to the main lessor.

Considering the benefits provided by the state to participants in leasing relations, it is necessary to distinguish between real and fictitious leasing. Based on legislative norms, the following features of a valid lease can be distinguished:

For the period of validity of the leasing agreement, the legal owner of the property is the lessor, and the owner and user - the lessee;

As a rule, the lessor partially or fully finances the cost of acquiring the leased property;

Accounting for the market value of the property at the time of the contract extension;

Additional services to the lessee are taken into account in lease payments;

The lessee reduces taxable income by the amount of lease payments. Gorshkov R.K., Dikareva V.A. Leasing: problems and development prospects in Russia: monograph; Library of scientific developments and projects of MGSU-2012. P.29

Fictitious leasing is speculative in nature and is designed to make a profit at the expense of tax and other benefits in force in the country.

Currently on Russian market leasing services use a large number types of leasing is very difficult. Leasing activities are mainly represented by operations on financial and operational, domestic and international types of leasing. Further development types of leasing depends on the legal support of leasing relations, as well as on the investment climate in the country.