Ten risk points of auto financing leasing companies and their countermeasures
Auto financing lease refers to a transaction in which a financing leasing company signs a vehicle sales contract with the supplier according to the lessee's choice of the leased vehicle and supplier, and rents it to the lessee for use according to the financing lease contract signed with the lessee, and the lessee pays the rent to the financing leasing company in installments. After the lease expires, the lessor unconditionally transfers the leased vehicle to the lessee at a nominal price. The following are the relevant risk points and their countermeasures. Welcome to read and study.
(A) the risk of encountering a contract
The vigorous development of auto financing leasing business and the general lack of risk control awareness of auto financing leasing companies provide an opportunity for some lawless elements and even units to take risks and take advantage of the particularity of auto financing leasing business to implement contracts for auto financing leasing companies.
Response measures:
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2. It is clearly stipulated in the relevant contract terms or issued a separate statement that once the auto financing leasing company discovers the contract, it will report the case to the public security organ, and all the materials submitted by it will be used as evidence, which may not have a good effect on recidivists, but it can also play a certain deterrent role;
3. Keep the original materials of corresponding due diligence. When finding the contract, sort out the report materials and report the case to the public security organ as soon as possible. In the process of reporting a case, according to practical experience, in addition to preparing detailed materials, it is best to describe the whole contract process to the public security organ in a short length or graphic visualization way, so as to reduce the risk that the public security organ will not file a case because of unclear facts.
(B) the risk of default on rent
The risk of rent default is the most common risk in auto financing leasing business, which mainly refers to the behavior that the lessee cannot pay the rent to the auto financing leasing company on time or in full.
Countermeasures: In the case of rent default, the reasons given by the lessee are often true or false, and the auto financing leasing company cannot take the reasons described by the lessee as the basis for its subsequent countermeasures. It is suggested that auto financing leasing companies should divide the measures to deal with rent default into three categories according to the time of default:
1, concern, at this time, the company's business personnel should collect the lessee and investigate the reasons for breach of contract;
2. If there are serious concerns, the company's legal department or lawyer will draft relevant letters and send them to the lessee in the name of the company, and inform them of the legal consequences;
3. Judicial measures, litigation or arbitration.
In addition, in order to avoid further losses, if the lessee still defaults on the rent after receiving the letter from the auto financing leasing company, it is suggested that the lessee organize forces to save himself in a safe and secure situation, or apply for enforcement on the premise that the lessee signs a financial leasing contract with enforceable effect and notarizes it.
(3) Risk deposit and liquidated damages.
The financial lease deposit refers to the money collected from the lessee by the lessor in order to ensure or ensure that the lessee fully and timely performs the obligation of paying rent and other payables. According to the agreement of the parties, the nature and function of the deposit are different. Therefore, in order to avoid ambiguity, the function, amount, payment method, interest bearing, preservation and disposal methods of the deposit should be clearly stipulated when concluding the deposit clause.
In addition, it should be noted that the deposit can be compared with liquidated damages or deposit, and the deposit, liquidated damages or deposit cannot be confused in the car financing lease contract, so as not to fully protect the interests of the lessor.
Response measures:
1. In the auto financing lease contract, it should be clearly stipulated that the guarantee scope of the deposit should include vehicle repair fee, toll, transportation management fee, vehicle fine, annual inspection, vehicle and vessel tax, overdue rent, insurance premium and other expenses payable by the lessee to the third party. At the same time, it is agreed that once the deposit is used, Party B shall make up the amount of the deposit within a specific date. If it is not made up within the time limit, it will be regarded as a fundamental breach of contract by Party B;
2. In practice, because the amount of liquidated damages is limited by the upper limit of 30% of the losses caused, it will be adjusted according to the actual situation, and sometimes the losses are difficult to identify, so it is essential to agree on liquidated damages and deposit.
3. Although liquidated damages and deposit can only be selected and advocated, it does not mean that liquidated damages and deposit cannot be agreed at the same time in practice. Therefore, when the liquidated damages are agreed, a single liquidated damages can also be agreed in terms of vehicle maintenance and annual inspection cooperation, which can be applied when it occurs. Such an agreement will inevitably cause psychological pressure on the lessee and help to ensure the full performance of the contract to a certain extent.
(four) the risk of unauthorized disposal of vehicles.
Under the direct leasing mode, the auto financing leasing company will register the vehicle in the name of the auto financing leasing company after purchasing the vehicle according to the lessee's choice, so the risk that the vehicle has no right to dispose is small. However, under the mode of sale and leaseback, even under the mode of direct lease, factors such as convenience of operation, cost of taxes and fees, and responsibility for subsequent use of vehicles should be considered.
Response measures:
1. Avoid registering vehicle ownership certificates such as motor vehicle registration certificate, driving license and motor vehicle invoice in the name of the lessee;
2. Inevitably, it is clearly stipulated in the financial leasing contract that the lessee is authorized to mortgage the vehicle to the auto financing leasing company and register the mortgage right at the registration authority according to law;
3. Make a sign in a prominent position of the vehicle, which is enough to make a third party know or should know that the vehicle is a leased vehicle when dealing with the lessee;
4. Prove that the third party does not meet the requirements of bona fide acquisition;
5. According to Article 9 of the Interpretation of People's Republic of China (PRC) and the Supreme People's Court on the Applicable Law in the Trial of Financial Leasing Contracts (hereinafter referred to as the Judicial Interpretation of Financial Leasing), it is proved that the third party belongs to the obligatory subject of financial leasing transactions in the corresponding institutions in accordance with the provisions of laws, administrative regulations, industry or regional authorities.
(5) The risk of the vehicle being sealed up or detained.
Rental vehicles involved in criminal cases were detained by public security organs as criminal tools, stolen goods, evidence, etc. , or involving the civil economy of a third party, the leased vehicle is seized and detained as the property of the lessee. The above situation also happens frequently.
Response measures:
1. Auto financing leasing companies should actively strive for the public security organs to identify the ownership of vehicles, including submitting a series of supporting materials such as car purchase contracts, invoices, financial leasing contracts and motor vehicle registration certificates;
2. It is clearly stipulated in the financial leasing contract that under the above circumstances, the auto financing leasing company has the right to terminate the contract, require the lessee to pay all the remaining rent and liquidated damages in advance, send a notice of termination to the lessee in time, and require it to bear corresponding responsibilities.
(six) the risk of vehicle theft, damage and loss.
In car financing lease, the ownership and use right of the car are separated. Although the responsibility for the repair, maintenance and safety of the car is borne by the lessee, the risk of theft, damage and loss of the car is also borne by the lessee, but the ownership belongs to the auto financing leasing company. In order to fully protect their own rights and effectively control costs, auto financing leasing companies must pay full attention to the risks of car theft, damage and loss.
Response measures:
1. Require the lessee to purchase insurance. Generally speaking, the first-year vehicle insurance is collected by the auto financing leasing company instead of the lessee, and the beneficiary is the auto financing leasing company.
2. At present, the functions of GPS and GMS anti-theft systems are also powerful enough. Auto financing leasing companies should pay full attention to installation, maintenance and replacement, and ensure the normal operation of the above anti-theft system through regular inspection.
(seven) the risk of being punished by traffic administration and being claimed by a third party.
There are similarities and differences between the risk of financial leasing vehicles after traffic accidents and the risk of vehicles being sealed up and detained in criminal and civil cases. The difference is that if the auto financing leasing company is at fault in identifying the lessee when operating the financing leasing business, for example, when the lessee is a natural person, it has not obtained a motor vehicle driver's license, while when the lessee is a logistics enterprise, the enterprise has not obtained a road transport business license or its qualification has expired, etc., and the auto financing leasing company still carries out the financing leasing business, it needs to bear certain responsibilities.
Response measures:
1. When operating the financial leasing business, conduct a comprehensive investigation on the lessee's lease qualification;
2. It is clearly stipulated in the financial lease contract that the lessee meets all the qualifications for using the leased vehicle and carrying out related business, and promises to bear all losses and claims caused by this reason. If the auto financing leasing company assumes the responsibility, it can recover from it afterwards;
3. Actively communicate and coordinate with traffic law enforcement departments, strive for their recognition of vehicle ownership, and then make reasonable disposal measures;
4. Maintain a good cooperative relationship with the traffic police command center or the vehicle management office, and notify the company in time when there is any violation or transfer of all vehicle numbers of the company.
(eight) the risk of vehicle quality defects
In the auto financing leasing business, the auto financing leasing company purchases vehicles for the use of the lessee according to the lessee's choice of vehicles and suppliers. The auto financing leasing company only collects rent, and the supplier directly delivers it to the lessee for acceptance and confirmation. Car financing leasing companies are not responsible for the quality of vehicles unless there is evidence that they interfere with the lessee's choice of vehicles or suppliers, which is more likely to happen in the business process of some car financing leasing companies.
Response measures:
1. It is clearly stipulated in the financial leasing contract that the auto financing leasing company will not interfere with the lessee's choice of lease items and suppliers, and the vehicle quality defects have nothing to do with it, and the lessee shall not refuse to perform the obligation of paying rent on this excuse.
2. In practice, some auto financing leasing companies will entrust the lessee to buy vehicles in order to avoid risks and facilitate operation. According to the principal-agent principle, the agency effect of the agent ultimately belongs to the principal, that is, the auto financing leasing company. However, the behavior in the purchase process is made by the lessee. As the trustee, the lessee fully exercises his right to choose and decide the vehicle and the supplier, and chooses to buy the vehicle from the supplier according to his own skills. Through the above operations, we can effectively prevent the auto financing leasing company from corresponding responsibilities caused by interfering with the lessee's right to choose.
(IX) Tax risks brought by "camp reform"
After the "VAT reform", the tax rate of direct leasing business in auto financing leasing actually increased from 5% to 17%, but the value-added tax in buying cars can be deducted, and the actual tax burden did not increase significantly with the increase of tax rate. However, under the leaseback mode, because the lessee does not charge value-added tax or business tax for selling vehicles, the lessee may not be willing to issue invoices, and the lessee may not be a natural person, so the auto financing leasing company cannot deduct the input tax.
Response measures:
1. Strengthen the work requirements for the financial department, and fully understand and communicate the tax policies and operating standards of the local tax authorities. In addition, the finance department must calculate the sales volume according to the provisions of document 106, after deducting the vehicle principal price charged by the lessee, the loan interest paid externally (including foreign exchange loan interest and RMB loan interest) and the interest after issuing bonds;
2. Under the direct lease mode, the supplier needs to issue invoices to the lessee (also the supplier) in the leaseback mode business, because according to the provisions of DocumentNo.. 106, although special VAT invoices are not required, ordinary invoices can be issued, which is beneficial to determine the amount of the principal price of the vehicle. Even if invoices are not issued, corresponding receipts should be required.
(10) Risk of single source of funds
The biggest obstacle for auto financing leasing companies, especially domestic pilot companies, is the source of funds. Due to the tightening of bank loans and interest rates, how to solve the problem of single source of funds has become a bottleneck to realize the national network layout of institutions and further expand the business market.
Extended reading:
Main risk points in the operation of automobile financing lease business
I. Legal risks
Legal risk refers to the legal risk in the process of financial leasing, which may bring negative legal consequences to the enterprise because the external or main body of the enterprise fails to exercise its rights and perform its obligations in accordance with the law or the contract.
The manifestations of legal risks mainly include:
1, the financial lease contract is not careful, which leads to the financial lease not being actually performed or not being protected by law;
2. The innovation of financial leasing may cause one or both parties to the transaction to suffer losses because they cannot find corresponding legal protection;
3. Crimes related to financial leasing and the loss of financial leasing assets increase the risk of financial leasing.
Second, moral hazard.
Moral hazard, also known as moral crisis, refers to the act of giving up the rights and interests of others for personal interests.
The main reasons for moral hazard:
1, lack of understanding of selfish behavior and its consequences;
2. Lack of legal awareness and its standardization.
Three. Managing risk
Because the credit risk prediction mechanism, risk transfer mechanism and risk control mechanism in the leasing company's own operation are imperfect or uncoordinated, it brings losses to the company. This kind of risk caused by the lack of internal management of leasing companies is called management risk.
Elements of controlling management risk:
1, the enterprise's own risk management is very important;
2. The contradiction between risk management and enterprise management runs through;
3. Risk is directly proportional to the effectiveness of the risk management system and system;
4. Good risk management can produce huge economic benefits.
5. A team of high-quality risk management talents is very important for creating good risk returns.
Fourth, market risk.
Characteristics of market risk:
1, uncertainty exists for a long time;
2. Uncertain factors also influence each other;
3. Market Risk Due to the intensification of competition, where there is a market, there is risk, and competition itself is one of the motivations of market risk;
4. Market risk is regular.
Second, why do you want to sign a financial lease contract for car loans?
You have to apply for a car, which is a necessary procedure for applying for a car loan. Because you buy a car by mortgage, you need the requirement of financing lease.
Just give customers real car loans.
Xinyou used car once said in an interview: However, the company itself will cooperate with Wangxin Bank and Weizhong Bank to provide customers with financial leasing services to meet the melting demand.
A practitioner in the second-hand car industry said that the car buyer who rented the car through financing became a car renter, and the ownership of the car was not owned by the consumer, but was obtained through leasing. And if the company has the right to dispose of the vehicle during this period.
The mode of renting before buying is becoming more and more normal, but it is an effective condition to own a car in the first year. Only when it is transferred from the platform to the customer.
There are great risks in this way. Because the ownership belongs to the platform, if the car buyer fails to pay as agreed, the car may be taken back or lent, or even sued.
1. Any automobile sales enterprise that collects fees in any name must strictly abide by the laws and regulations such as the price law and the protection of consumers' rights and interests, ensure that the price is clearly marked in advance, and consumers can choose independently, and provide real goods or services that match the quality and price, and shall not collect fees in violation of regulations; Do not make excuses to mislead consumers; It is forbidden to force or force tying transactions in disguised form.
Second, pay attention to keep the evidence when buying a car and read the contract carefully:
1, pay attention to save the recording from buying a car to prevent being confused by the excessive commitment of the sales staff. In particular, the other party's explanation of various funds, in case the loan encounters a "routine", lacks relevant evidence.
2. Read the terms of the sales contract carefully and read the written contract clearly.
3. If the other party provides a loan contract with blank information, it is required that the contract specify the down payment amount, loan amount and repayment period. At the same time, it is best to sign a car purchase contract accompanied by someone who knows the contract, and beware of all kinds of "pits" in the contract.
4. Ask about other expenses involved in car purchase.
Third, the car bought on the melon seed used car platform saw a financial lease on the app today. ...
It feels good to be supportive.
4. Is there any risk in the second-hand car financing lease contract?
Second-hand car financing lease contract is risky.
1. What are the risks of the financial lease contract?
1, default risk. Financial leasing transactions involve three parties: leasing, leasing and supply, and there is the possibility of default. The supplier fails to deliver the goods according to the time and quality standards stipulated in the purchase contract; The lessee refuses to pay the rent or asks for a refund or terminates the contract because of the supplier's breach of contract. The lessee delays payment or fails to pay rent due to poor management and inefficiency; The lessor failed to pay on time according to the terms of the purchase contract due to insufficient funds, which caused the supplier to refuse or delay the delivery, thus causing the lessee to suffer losses.
2. Risks of changes in interest rates and taxes.
3. Risk of exchange rate changes in international leasing.
4. Risks of export leasing. In addition to the above risks, there are political and credit risks.
Second, the issue of financial lease contract
1, leased property
The contract shall specify the name, quantity, specifications, technical performance and inspection methods of the leased property, as well as the storage, maintenance, payment of relevant taxes and insurance of the leased property during the lease period.
When the lessor chooses the lease item and the seller, the lessee should generally choose the lease item freely and rely on the lessee's own skills to determine the lease item, so that the lessor will not bear the responsibility that the lease item does not meet the agreement or use purpose. The purchase expenses of the leased property shall be borne by the lessor. The contract should also stipulate that the lessor has the ownership of the leased property and the transfer of the ownership of the leased property after the lease expires, including the transfer conditions, consideration, transfer time, etc.
2. Rent
The lessor should pay attention to the amount and composition of the rent agreed with the lessee: generally, the rent cost plus interest calculated according to the rent rate, and should also agree on the payment period, method and currency of the rent. If the parties have not agreed on the rent, it shall generally be determined according to most or all of the cost of purchasing the lease item and the reasonable profit of the lessor.
3. Lease period
Generally speaking, the month is the unit, and the start date should be clearly defined.
4. Contract guarantee
In order to ensure the lessee to pay the rent and perform the contract, the lessor should generally require the lessee to provide corresponding guarantees, including third-party guarantees, mortgage or pledge of its own assets, etc. The lessor shall examine the subject qualification of the guarantor, the content and effectiveness of the guarantee contract, and handle various registrations in accordance with the relevant provisions to make the contract guarantee really effective.
5. Termination of the contract
Generally speaking, the conditions for dissolution should include that the lessee fails to pay the rent on time, the lessee's subject qualification disappears, and the lessee is obviously unable to pay the rent.
6. Settlement of contract disputes
The parties to a contract may agree to choose an arbitration institution or a place actually connected with the dispute to handle the contract dispute. If there is no jurisdiction agreement between the parties, it shall be under the jurisdiction of the defendant's location or the place where the leased property is used.
7. Other expenses
Where the lessor collects fees, attorney fees and other fees from the lessee, it shall be clearly stipulated in other agreements, and it cannot be deducted directly when purchasing the leased property. The lessor shall pay the full price of the leased property, otherwise it will constitute a breach of contract. In view of the professional legal problems in the above-mentioned financial leasing contract, in order to avoid unnecessary disputes caused by imperfect contract terms, as lessors, financial institutions had better ask professional law firms to assist in the formulation.