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在我国,融资租赁合同是否为一种独立的合同类型,已不再是一个争论的问题,因为合同法明确规定了融资租赁合同为一种独立的合同类型。但我国《合同法》第十四章中融资租赁合同的相关规定,还不能够充分地体现融资租赁合同的特性,有待于进一步的完善。与我国情况相反,自20世纪60年代德国出现融资租赁交易模式以来,德国立法对融资租赁合同归何种合同类型未做明确的规定,因此,虽然在司法判例中,融资租赁合同被看做是一种特殊的租赁合同,但德国学术界却从未停止过对融资租赁合同法律本质的争论,诸如视融资租赁合同为租赁合同、买卖合同、借款或信贷合同、商业代理合同及新型合同等。学术界的争论不但使融资租赁合同的基本特征更加清晰,同时对解决实践中出现的具体问题大有裨益。本文将通过展现德国相关的司法判例和学术观
In our country, whether the finance lease contract is an independent type of contract is no longer a controversial issue because the contract law clearly stipulates that the finance lease contract is an independent type of contract. However, the relevant provisions of the finance lease contract in Chapter XIV of the Contract Law can not fully reflect the characteristics of the finance lease contract and need to be further improved. Contrary to our situation, since German leasing transaction model appeared in Germany in the 1960s, there is no explicit stipulation of the type of contract under which a financial leasing contract belongs to in German legislation. Therefore, although in the judicial precedent, the financial leasing contract is regarded as A special lease contract, but the German academia has never stopped the debate on the legal nature of the financial leasing contracts, such as lease contracts, sale and purchase contracts, loans or credit contracts, commercial agency contracts and new contracts. Arguments in academia not only make the basic characteristics of the financial lease contract clearer, but also benefit the solution of the specific problems that arise in practice. This article will show the relevant German judicial precedents and academic views