The relationship, called “leasing” (from the English to lease - to rent and lease), has been known for a long time, although there is no consensus on where and when they first arose: in the Roman Empire, medieval England or in the last century in the USA. But modern leasing became widespread in continental Europe in the 60s of the twentieth century. The reason was the extraordinary flexibility of this form of relationship: it could be used to solve independent problems, achieve dissimilar goals of partners and in a variety of economic conditions.

The general leasing scheme can be presented as follows:

1. the lessee indicates to the lessor the seller and the subject of the leasing agreement;
2. the lessor purchases the subject of the lease agreement from the seller;
3. the lessor transfers the acquired property for use to the lessee;
4. The lessee pays lease payments.

The lessor has the right to monitor the lessee’s compliance with the terms of the leasing agreement and other related agreements. The purposes and procedure for inspection are stipulated in the leasing agreement and other related agreements between their participants (Article 37 of the Leasing Law).

The lessor also has the right to financial control over the activities of the lessee in that part that relates to the subject of leasing, the formation of financial results of the lessee's activities and the fulfillment by the lessee of obligations under the leasing agreement. The purpose and procedure for financial control are provided for in the leasing agreement. The lessor has the right to send written requests to the lessee for information necessary to carry out financial control, and the lessee is obliged to satisfy such requests (Article 38 of the Leasing Law).

If the lessee fails to fulfill this obligation, the lessor has the right:

• demand the application of a measure of liability (compensation for losses caused by termination of the contract).

7. Upon termination of the agreement, return the leased item to the lessor in the condition in which he received it, taking into account normal wear and tear or wear and tear stipulated by the leasing agreement.

If the lessee does not return the leased item or returns it untimely, the lessor has the right:

• demand the return of property;
• demand leasing payments for the period of delay;

The loss of the leased asset or the loss of its functions by the leased asset due to the fault of the lessee does not relieve the lessee from obligations under the leasing agreement, unless otherwise provided by the agreement (Article 26 of the Leasing Law).

8. Do not transfer your rights and obligations arising from the leasing agreement to third parties without the consent of the lessor.

The type of sublease of the leased asset, in which the lessee, under a leasing agreement, transfers to third parties for possession and use for a fee the property constituting the leased asset, is defined as subleasing (Clause 1, Article 8 of the Leasing Law). When subleasing, third parties to whom the lessee transferred the leased asset under the leasing agreement become lessees under the subleasing agreement.

When transferring the leased asset for subleasing, the consent of the lessor in writing is required. If the property is subleasing without the consent of the lessor or such consent is received orally, then this agreement is void, and the lessor has the right:

• demand termination of the leasing agreement;
• demand the application of a measure of liability (compensation for damages).

One type of lease is financial lease (leasing). In our country, leasing has found widespread use relatively recently. The term "leasing" means "to rent".

A leasing agreement is an agreement under which the lessor (hereinafter referred to as the lessor) undertakes to acquire ownership of the property specified by the lessee (hereinafter referred to as the lessee) from a seller specified by him and to provide this property to the lessee for a fee for temporary possession and use. The leasing agreement may provide that the choice of the seller and the purchased property is made by the lessor.

The lessor (lessor) can only be an individual entrepreneur or entity who have a license to carry out activities in the field of leasing.

The leasing agreement has certain characteristic features that distinguish it as a separate type of lease agreement.

1. Along with the lessor and the tenant, the seller of the property, who is its owner and is not participating in the leasing agreement as a party, also acts as an obligated person under the leasing agreement.

2. The lessor is obligated to acquire ownership of property belonging to another person (seller). This obligation of the lessor is covered by the content of the obligation arising from the leasing agreement. When purchasing property for a tenant, the landlord must notify the seller that the property is intended to be leased.

3. An active role, usually unusual in rental relations, belongs to the lessee in the leasing obligation. It is the tenant (lessee) who determines the seller and indicates the property that must be purchased by the lessor (lessor) for subsequent lease. Naturally, the lessor is relieved of any responsibility for the choice of the rental item and the seller. An exception to this rule can only be the case when the leasing agreement assigns the responsibility for identifying the seller and selecting the property to the lessor (Article 665 of the Civil Code of the Russian Federation).

4. Special compared to general rules on leasing, the provision set out in the Civil Code of the Russian Federation in the form of a dispositive norm stipulates that the transfer of property leased under a leasing agreement to the lessee can be carried out by both the lessor and the seller of this property. However, responsibility for non-fulfillment or improper fulfillment of this obligation, if the delay is due to circumstances for which the lessor is responsible, rests with the lessor. In this case, the tenant has the right to demand from the lessor termination of the contract and compensation for losses (clause 2 of Article 668 of the Civil Code of the Russian Federation).

Main forms of leasing is domestic and international leasing. When carrying out domestic leasing, both the lessor and the lessee must be residents Russian Federation, in case of international leasing, these entities are non-residents of the Russian Federation. Domestic leasing also includes agreements in which the seller is a non-resident of the Russian Federation.

The concluded leasing agreement may include conditions for the provision of additional services and additional work, the list, volume and cost of which are determined by the additional agreement. These works and services include works and services of any kind provided by the lessor both before the start of use and during the use of the leased asset, directly related to the execution of the contract.

Subjects of the leasing agreement landlord and tenant are recognized leased property, thereby emphasizing that a leasing agreement is one of the types of lease.

In a leasing agreement, commercial banks often act as lessors. Their participation in such transactions is explained by the fact that leasing can be considered as a form of financial transaction, a way of making capital investments. By purchasing equipment for the purpose of subsequent leasing, the bank invests capital, since the leasing transaction ultimately comes down to a credit transaction.

The landlord provides the tenant with financial assistance, since he acquires ownership of the property at full cost. The tenant uses this property by paying periodic payments to the landlord. Consequently, leasing is a special type of financial loan with certain conditions for its repayment.

Subject of the agreement financial lease can be any non-consumable items used for entrepreneurial activity, except for land plots and other natural objects. Indication of an improper object in a leasing agreement indicates a different nature of the completed agreement with the application of appropriate legal consequences both in the civil law aspect and for the purposes of other branches of legislation.

The leasing agreement, regardless of its term, must be concluded in writing. Moreover, the name of the leasing agreement determines its form, type and type. In other words, the parties must classify leasing as:

• internal or external;
• long-term, medium-term or short-term;
• financial, repayable or operational.

The essential terms of the leasing agreement include:

• subject of the leasing agreement;
• term of the contract (term of its validity);
• contract price (size and composition of lease payments);
• on whose balance sheet the property is located.

Contract time may be definite or indefinite. In the first case, the lease agreement is valid for the period specified in it. This period can be indicated by a period of time or by indicating the beginning and end of the contract.

It is necessary to distinguish between the duration of the contract and the period of use of the property. Since the contract does not relate to real transactions, its beginning is not strictly associated with the moment of provision of property for use (transfer of the thing). Therefore, the moment of concluding the contract and the moment of beginning to use the property may not coincide, due to which the period of use of the property is less than the term of the contract itself. The payment of rental payments is determined by the beginning of the period of use of the leased property, and not the beginning of the contract in the economic sense. In order to avoid a dispute between the parties, it is advisable to indicate the moment when the use of the property begins in the contract, especially if the property that is the subject of the lease does not allow you to begin using it immediately from the moment of its transfer.

The duration of the leasing agreement is ultimately determined by the terms of full depreciation (payback) of the leased asset, but is established by the parties to the agreement depending on the market situation, the financial situation of the parties, the value of the leased property, the nature and magnitude of commercial risks, and mandatory regulations of a regulatory nature.

Price It is also an essential condition of the leasing agreement. The price of a leasing agreement refers to leasing payments. Leasing payments mean the total amount of payments under the leasing agreement for the entire term of the leasing agreement, which includes reimbursement of the lessor's costs associated with the acquisition and transfer of the leased asset to the lessee, reimbursement of costs associated with the provision of other services provided for in the leasing agreement, as well as the lessor's income.

Under a financial lease (leasing) agreement, the lessor undertakes to acquire ownership of the property specified by the lessee from a seller identified by him and to provide the lessee with this property for a fee for temporary possession and use for business purposes. IN in this case the lessor is not responsible for the choice of the subject of rent and the seller (Article 665 of the Civil Code of the Russian Federation). This type of lease agreement is regulated not only by the Civil Code of the Russian Federation, but also by Federal Law of October 29, 1998 N 164-FZ “On financial lease (leasing)”.

The leasing agreement is bilaterally binding, mutual, consensual, compensated, and fixed-term.

Lessor (lessor) - an individual or legal entity who, at the expense of attracted or own Money acquires ownership of property during the implementation of a leasing transaction and provides it as a leased asset to the lessee for a certain fee, for a certain period and under certain conditions for temporary possession and use with or without transferring ownership of the leased asset to the lessee.

Lessee (lessee) is an individual or legal entity who, in accordance with the leasing agreement, is obliged to accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use.

The lessee owns and uses the leased asset for business purposes.

Seller (supplier) is an individual or legal entity who, in accordance with the purchase and sale agreement with the lessor, sells to him, within a specified period, the property produced (purchased) by him, which is the subject of leasing. The seller (supplier) is obliged to transfer the leased item to the lessor or lessee in accordance with the terms of the purchase and sale agreement. The seller can simultaneously act as a lessee within the same leasing legal relationship (Article 4 of the Federal Law “On Financial Lease (Leasing)”).

The law distinguishes the following forms of leasing: domestic and international. In domestic leasing, the lessor, lessee and seller are residents of the Russian Federation. Leasing is international in nature if one of the parties to the leasing agreement is a non-resident of the Russian Federation (Article 7 of the Federal Law “On Financial Lease (Leasing)”).

The form of the leasing agreement, regardless of the term, is written. The title of the leasing agreement determines its form, type and type.

The subject of a leasing agreement is non-consumable movable and immovable things, including enterprises and other property complexes.

The subject of leasing cannot be land and other natural objects, as well as property that is prohibited by federal laws for free circulation or for which a special circulation procedure has been established, with the exception of military products, the leasing of which is carried out in accordance with international treaties of the Russian Federation, Federal Law of July 19, 1998 N 114-FZ "On military-technical cooperation of the Russian Federation with foreign states" in the manner established by the President of the Russian Federation, and technological equipment foreign production, leasing of which is carried out in the manner established by the President of the Russian Federation (Article 3 of the Federal Law “On Financial Lease (Leasing)”).

Participants in a leasing transaction must accurately describe the leased item, determine the place and procedure for its transfer.

The leasing agreement must contain the following essential provisions: on the powers of the owner transferred to the lessee; list, volume and cost of additional services provided by the lessor; circumstances that the parties consider an indisputable and obvious violation of obligations and which lead to termination of the leasing agreement and property settlement, as well as the procedure for the withdrawal (return) of the leased asset (Article 15 of the Federal Law “On Financial Lease (Leasing)”).

In mandatory form, the legislation defines the following basic rights and obligations of leasing participants. The lessor is obliged:

1) purchase property from the seller specified by the lessee;

2) notify the seller that the purchased property is intended to be leased to a certain person;

3) provide the property for temporary possession and use to the lessee.

In relation to the lessor, the lessee is obliged to:

1) use the leased property only for business purposes in accordance with its purpose and the requirements of the leasing agreement;

2) make lease payments in the manner and within the terms established by the agreement.

Leasing payments mean the total amount of payments under the leasing agreement for the entire term of the leasing agreement, which includes reimbursement of the lessor's costs associated with the acquisition and transfer of the leased asset to the lessee, reimbursement of costs associated with the provision of other services provided for in the leasing agreement, as well as the lessor's income. The total amount of the leasing agreement may include the redemption price of the leased asset if the leasing agreement provides for the transfer of ownership of the leased asset to the lessee.

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

Classification of types of leasing and their legal features

IN scientific works There are many classifications of types of leasing: according to the legal features of contractual relations, according to the composition of the participants in the transaction, according to the degree of recoupment of the 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 - signs are often changed, formulated and regulated in our country and abroad in different ways.

The Leasing Law presents two main forms - domestic and international leasing; Article 8 of the Leasing Law 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 the leasing agreement, and the legal relations of the parties to the transaction depend on the classification of a leasing transaction as one or another type. .

As a rule, leasing is divided into two main types - financial and operational, the remaining types are a variety of financial and operational leasing. With financial leasing, the property is transferred for a period equal to (somewhat less than) the depreciation period; the right to choose the object of the contract, as well as the seller, belongs to the lessee. When purchasing property, the lessor must warn 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 through leasing payments, cover the costs associated with the leasing transaction and make a profit from its activities.

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

Table 3

Legal relations of participants in financial leasing

	Execution Approach
Selecting the leased item and its seller
Purchase of a leased object	Full (partial) financing is carried out by the lessor, who also warns the seller about the transfer of the object for leasing
Legal relations of participants in a leasing transaction	The lessor and the lessee are joint and several creditors in relation to the seller
Right to redeem property	The right of redemption belongs to the lessee until the expiration of the contract
Maintenance 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
Leasing term duration	As close as possible to the standard service life and payback
Volume of leasing payments during the contract period	The full cost of the leased object in prices at the time of conclusion of the contract

In financial leasing involving funds (borrowing), both the procedures for acquiring property and the procedures for obtaining bank guarantee, insurance, collateral.

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

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

Table 4

Features of operational leasing

	Execution Approach
Property leasing	Lessor's property
Lessee's right	Return of property upon early termination of the contract; there is no obligation to pay the entire amount of lease payments for the period of the leasing transaction
Leasing payment rates	Rates typically include service costs and are high
Duration of the leasing transaction	Significantly less payback period for the item
Preference for operating leasing	In the absence of funds, the lessee uses the leased object with payment in installments
Lessor risks	Reimbursement of the value of property in case of its damage (destruction)
Lessee guarantees	Ensure the established residual value of the property by the end of the contract term

It should be noted that operational leasing is divided according to the period of use of the property: rental, duration - from several hours to a year; Hiring, duration - from six months to three years.

There are no systematic definitions of financial and operational leasing in Russian legislation. A simplified division of leasing according to the degree of payback of the leased 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	Operating leasing
The nature of the transaction is medium- and long-term	Short- and medium-term nature of the transaction
Typically, full depreciation of the value of the property	Partial depreciation of property; at the end of the contract, the leased asset can be leased out again
Financing of the transaction by the lessor, transfer of all obligations to own and use the property to the lessee	Participation of the lessor (under contract) in maintenance, repair, insurance of the leased object
Financial leasing is offered by banks (subsidiaries of banks)	Operating leasing is offered by manufacturers of equipment, machinery, and their subsidiaries leasing companies (trading companies)
The property is supplied by the seller directly to the lessee, bypassing the lessor	The property is supplied to the lessee directly by the lessor
The lessee chooses the property and seller	The choice of property and type of service is determined by the lessor
The lessee sends claims regarding quality, completeness, and correction of defects during the warranty period to the seller.	The lessee sends claims regarding quality, completeness, correction of defects during the warranty period to the lessor

The following types of financial leasing are quite complex in their implementation: leasing “in a package” and leverage leasing. Leasing in a “package” is a procedure for financing an enterprise, in which 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 investment of funds (capital investments), so the lessor takes out a loan from a third party in the amount of 80-90% of the leasing transaction amount. The objects of a leasing transaction, as a rule, are objects of housing and communal enterprises and equipment, trains, a fleet of vehicles, drilling equipment and platforms, sea and river vessels.

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

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

Taking into account 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 signs of valid leasing 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 is the lessee;

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

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

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

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

Fictitious leasing is speculative in nature and is designed to generate profit through tax and other benefits existing in the country.

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