리스금융에 있어서 중도해지에 대한 고찰

Lease agreement, a new form of commercial activity, so far has no legal specifics stipulated on the basis of the Commercial Law as to prescribe the rights and duties of both parties and relied solely on stipulations and interpretations, which in consequence generated a variety of disputes. To deal with this problem, amendments were made to the Commercial Law with regard to lease agreements, and notice of legislation was advanced in August 6, 2008. That is, in order to stipulate legal specifics on lease agreements in the Commercial Law, which has so far relied on practical stipulations, separate chapters and sections were newly incorporated into the amendments to specifically provide such concerns as the basic rights and duties of both principals of an agreement. By stipulating the amendments in the Commercial Law as such, an attempt was made to secure a legal stability in commercial transactions. Concerning the classification of lease agreement, the amendments, while reflecting No. 19 of Article 46 in the current Commercial Law, perceive it as a financial transaction (physical finance), which is different from a rental agreement, so as to confine the definition of financial lease business to a finance lease on the basis of the Commercial Law, and, by interpreting operating lease as ‘rental agreements for other property’ in No. 2 of Article 46 in the Commercial Law, distinguish finance lease and operating lease clearly according to their legal properties. Regarding finance lease, however, a problem remains where ownership in terms of taxation and accounting and ownership in a legal sense disagree. So, as an effort to coordinate with the classification system of taxation and accounting, it seems that ownership in terms of taxation and accounting had better be awarded to the lease company in a finance lease agreement. In the mean time, as it was pointed that most of the current stipulations for lease agreement fail to properly protect the users of lease agreements by not allowing them to cancel the agreements before maturity, exceptions have been made to the stipulations so as to allow cancellations before maturity if the user has an acceptable reason for cancellation. For operating lease, the conflicts involving cancellations before maturity are being settled according to the legal principles of rental agreement. However, as far as the defects liability and the maintenance liability for the object of operating lease is concerned, if the current stipulations were followed, which reflect the characteristics of lease agreement and, as a result, differ from those in the Civil Law, there comes a problem in which the stipulations become inconsistent with the legal principles of the Civil Law behind rental agreement. A further discussion on this matter would be necessary in the future.