There are many risks in the trap of car "renting instead of buying"
Reporter investigates the phenomenon of car financing leasing
● Although financial leasing is currently protected by Chinese law, there are still some controversial issues in practice, such as how to clarify the nature of the relationship between financial leasing contracts and other related contracts, and how to guarantee breach of contract relief, etc.
● The reporter searched on a third-party complaint platform and found that the complaints related to auto financial leasing are mainly divided into two categories: forced sale of high-value commercial insurance and inability to transfer the property after the payment is settled.
● Both parties to the lease should improve their legal awareness, read the terms of the contract carefully before signing the contract, and perform their obligations in accordance with the contract to avoid disputes.
Consumers should rationally judge their economic ability when purchasing a car, consume within the scope of their ability, and choose a formal car sales company for purchase.
In the event of a dispute, you should protect your legitimate rights and interests in accordance with the law
□ Our reporter Han Dandong
□ Yang Huijia, an intern of our newspaper
Is it reliable to "rent and buy" a car?
Recently, several news related to auto financial leasing have brought "renting instead of buying" into people's field of vision.
The "Rule of Law Daily" reporter learned that "renting instead of purchasing" refers to a car purchase model of car financing leasing. The car buyer first uses the car by renting a car and pays the rent to the car financing leasing company every month until the two parties in the contract are paid. After reaching the amount or after a certain period, the car is transferred from the rental company to the name of the buyer.
What is the actual effect of the "rent-to-buy" model?
A car owner who bought a blue-brand truck through car financing leasing told reporters that in the past three years, he paid a total of 169,200 yuan, and the monthly payment was 4,700 yuan. It’s more cost-effective with interest.”
However, during the interview, many car owners and reporters also reflected on the many problems they encountered.
Experts interviewed said that although financial leasing is currently protected by Chinese law, there are still some controversial issues in practice, such as how to clarify the nature of the relationship between financial leasing contracts and other related contracts, and how to guarantee breach of contract relief.
Both parties should improve their legal awareness, carefully read the terms of the contract before signing the contract and perform their obligations in accordance with the contract to avoid disputes.
Consumers should rationally judge their economic ability when purchasing a car, consume within the scope of their ability, and choose a formal car sales company for purchase.
In the event of a dispute, you should protect your legitimate rights and interests in accordance with the law.
Low credit threshold
You can buy a car with zero down payment
"Don't look at the qualifications, pick up the car on the same day, and start a new car with a down payment of 2,999 yuan..." The reporter searched the Internet for the keyword "renting instead of purchasing" and saw a number of advertisements released by Fujian Xixiangfeng Auto Service Co., Ltd. on the website.
The company's Jinhua branch also clearly marked the words "bad credit, overdue, court prosecution, bad debt, can't be done outside; all can be handled!" on the website.
According to the information on the webpage, the cost of picking up a car for this method of car purchase includes four parts: 10% down payment, handling fee, monthly payment and annual insurance fee.
At the same time, it also reminded that those with sufficient funds can choose to pay the remaining amount in advance after 12 to 15 instalments, and said this method is "a form that has existed in foreign countries for a long time."
Zhang Junyan, associate professor of the School of Finance, Renmin University of China, said: "Car financial leasing is generally a financial service, and many consumers engage in online car-hailing and other services through this new car purchase method. As a modern marketing method, car financial leasing, It is legal in itself, and the Civil Code also regulates financial lease contracts.”
It is understood that the "Measures for Auto Finance Management Companies" promulgated by the former China Banking Regulatory Commission in January 2008 defined auto financial leasing: auto financial leasing business refers to an auto finance company taking a car as the leasing subject matter, according to the lease. The choice or approval of the car and the supplier by the person, the lease of the car obtained from the supplier to the lessee for possession and use according to the contract, and the transaction activity of collecting rent from the lessee.
Reporters contact sales as car buyers.
A salesman who was happy to meet told reporters that "purchasing with rent" can provide convenience for consumers with poor credit: "Car financing leasing is a loan with a car financing company, and the credit requirements for car buyers are low, but it is necessary to buy a car. Those who pay a 10% down payment cannot buy a car with zero down payment.”
The sales told reporters that taking a new car with an official guide price of 169,800 yuan as an example, it would cost about 190,000 yuan to purchase the car through the "rent and buy" model, and the down payment would cost about 15,000 yuan. 47 installments of the loan, with a monthly payment of 3,999 yuan, and free transfer after the loan is settled.
When asked how to solve the difficulties in the repayment process and unable to repay in time, the salesman said that he could apply for a deferment of repayment, but the specific operation needs to contact the company after-sales.
In fact, "buying by rent" is not only favored by consumers with credit problems. Many people who are engaged in online car-hailing or other operating vehicle industries will also choose the "buy by rent" model.
Mr. Chen from Zhengzhou, Henan told reporters about his job-hunting experience in 2021: At that time, Mr. Chen, who was in the transition period for job-seeking, interviewed many 4.2-meter blue truck drivers through an online job-seeking platform.
After several rounds of interviews, Mr. Chen found that the contracts issued by many companies were not work contracts but car purchase contracts, and the car purchase price was much higher than the market price. under the company's name.
At the same time, the company promises to provide business to guarantee its income after purchasing the car.
Later, the reporter entered the online job search platform and saw that in some online car-hailing recruitment information details pages, the service of providing zero down payment for car purchases is indeed marked. All models can be rented first and then bought, but there is no "rent to buy". "Car financing lease" and other words.
"In the beginning, the logistics company said that they have a fixed transportation route, and the monthly income can reach 10,000 to 20,000 yuan. Then, they will guide you to buy a car. When you sign a car purchase contract, the down payment will be stated on it. The amount of repayment and monthly installment repayment is also much higher than the market, and it can fall under the name of the individual or the company." Mr. Chen said.
Later, Mr. Chen learned from the riders that these companies are mixed, and there are generally problems in setting up routes, unreasonable task volume, and even lack of supply.
"I heard that many drivers did not have stable income after purchasing a car, and it was difficult to repay the loan in the end, so I did not agree to sign a car purchase contract." Mr. Chen said.
Mr. Li, a practitioner in the automobile industry, also said that such recruitment companies usually allocate overweight cargo to car owners, which increases the cost of transportation for drivers and affects the life of the car.
In the long run, if the driver is unwilling to work according to the tasks arranged by the company, the company will say that it is the owner's personal reason, not that the company does not arrange work.
no clear agreement
Forcibly selling high-priced car insurance
Mr. Xiao from Nanning, Guangxi used to be an online car-hailing driver. Due to personal reasons, the car was overdue and the car was taken back by the company. He is now appealing in the court, hoping to recover the down payment and the excess insurance amount.
According to Mr. Xiao's recollection, in July 2019, he rented a car from a car rental company in Guangzhou through "renting instead of buying" and started to run online car-hailing.
The two parties agreed to make a down payment of 8,000 yuan and a monthly payment of 4,750 yuan for 36 months, totaling 179,000 yuan.
At that time, the market price of the car was 136,800 yuan.
From July 2019, Mr. Xiao has paid the monthly payment normally until June 2021, and has actually paid 114,000 yuan to the car rental company for financial leasing, plus a down payment of 8,000 yuan, a total of 122,000 yuan.
The financial lease contract signed by Mr. Xiao indicated that the down payment was not included in the rent and did not belong to the nature of the rent, but he did not specify the nature of the down payment.
Regarding the issue of the excess insurance amount, Mr. Xiao showed reporters the chat records between him and the sales and the financial lease contract.
According to the agreement of the financial leasing contract between the two parties, the first paragraph of the agreement on insurance and accident in the sixth item of the contract reads, "The insurance premium during the lease period shall be borne by Party B, and Party B has the right to choose an insurance company for insurance."
Mr. Xiao told reporters that the first year of insurance premiums were negotiated by the car rental company to purchase on their behalf, but the company still forced Mr. Xiao to buy insurance in the second year.
According to the national average charging standard of auto insurance in 2020 and the national average price of commercial vehicle insurance in 2020, the company's insurance price is 30% higher than the market price.
"It's my fault for overdue, but the company's compulsory purchase of insurance is a breach of contract. The company provides compulsory traffic insurance and commercial insurance totaling 8,617.91 yuan, and the market price is 4,650 yuan. Later, I thought this was a routine of the company. Renting a car at a high price under the guise of “renting and purchasing” and compulsory purchase of insurance.” Mr. Xiao said angrily.
In this regard, Wang Yanhui, a lawyer from Shanghai Hengyanda Law Firm, believes that the financial leasing contract is a contract of mutual autonomy, and the price of the car is an important factor in the contract. Therefore, the two parties should reach an agreement on the price before signing the contract, if the buyer approves it. , then higher than the market price is not illegal.
However, if the car owner is forced to purchase high-priced commercial car insurance, it is suspected of constituting a forced sale of insurance.
Wang Yanhui said that Article 11 of the Insurance Law stipulates that the conclusion of an insurance contract shall be through consensus, and the rights and obligations of all parties shall be determined in accordance with the principle of fairness.
Insurance contracts are concluded voluntarily, unless insurance is required by laws and administrative regulations.
In the insurance provided by the car rental company for the lessee, except the third-party liability insurance, which is compulsory insurance stipulated by law, the other types of insurance are commercial insurance and do not belong to the scope of compulsory insurance.
That is, the car rental company cannot force the car lessee to buy it.
If the vehicle is recovered due to the failure to repay the loan in time during the performance of the contract, does the buyer have the right to recover the down payment amount?
Zhang Junyan said that to analyze specific issues in detail, the key is to look at the contract.
In the practice of financial leasing transactions, in order to control risks and ensure the recovery of part of the costs and benefits, the lessor often adopts the mode of letting the lessee pay a down payment of 10% to 30% of the total rent first, and financing the remaining part of the payment to the lessor. Common business transaction patterns.
The rent of a financial lease contract is usually determined based on the lessor's entire cost and the lessor's reasonable profit. If the lease down payment is part of the rent, it should not be returned after the vehicle is recovered.
According to Article 758 of the Civil Code, the parties agreed that the leased property will be owned by the lessee when the lease term expires. The lessee has paid most of the rent, but is unable to pay the remaining rent. Therefore, the lessor rescinds the contract and takes back the leased property. If the value of the rent exceeds the rent and other expenses owed by the lessee, the lessee may request a corresponding refund.
"If both parties clearly agree in the contract to adopt the financial leasing transaction model of 'lease down payment + monthly rent payment', both parties should perform their obligations in accordance with the contract, and the court should also take the contract as the main review basis." Zhang Junyan said.
Zhang Junyan said that the practice of forcing car owners to purchase high-priced commercial auto insurance through fixed channels is debatable.
On the one hand, the leasing company did not clearly state the car insurance situation when concluding the contract, which violated the principle of good faith; on the other hand, restricting the channels for car owners to purchase commercial insurance through the contract is also an infringement of car owners’ right to choose car insurance independently. The law does not support the terms of the agreement to exclude the main rights of the other party.
After payment is settled
The car cannot be transferred
The reporter searched on a third-party complaint platform and found that complaints related to auto financial leasing are mainly divided into two categories: forced sale of high-value commercial insurance and inability to transfer the account after the payment is settled.
Mr. Wang from Dongguan, Guangdong encountered a situation where he could not transfer the account after the payment was settled.
In March 2019, when Mr. Wang applied for an online car-hailing driver through the online job search platform, he purchased a car through the "rent-to-buy" model. The bid price in the contract was more than 140,000 yuan. The loan was repaid in April this year. But as of July 8, it has not been able to transfer the account.
Mr. Wang said that he signed a "rent-to-buy" contract with a car rental company in Dongguan under the persuasion of the recruiter.
After the down payment, Mr. Wang found out that the car was still involved with a third-party company, but because the leasing company said that it would deduct 16,000 yuan for giving up the car, Mr. Wang did not immediately go back on it.
In April of this year, after Mr. Wang settled the payment, the company delayed the transfer of the vehicle to Mr. Wang on the grounds that the vehicle involved a third-party company. Mr. Wang contacted the company many times and the problem was still not resolved.
Mr. Wang said that there are many such cases around him, and the online car-hailing drivers who bought cars in the same batch as him are facing the problem of repaying the loan but not being able to transfer the ownership.
"Many car owners have given up on the transfer, and they plan to continue to run the online car-hailing business to make money until the car is scrapped, and there is no need to transfer the car. The company negotiated to run the business for another month and return the car to the company."
What troubles these drivers is that if the car cannot be transferred, it means that they have to continue to bear high commercial insurance, and there are problems such as driver limitations.
"I don't work as an online car-hailing driver now, but because this car is still a commercial vehicle, I have to continue to buy high commercial insurance, and my family can't drive it." Mr. Wang said.
Since April this year, Mr. Wang has contacted the leasing company for many times to negotiate, and has also tried to understand various ways of safeguarding rights, but the problem has not been resolved so far.
In the meantime, he wanted to sue, but the litigation cost is not low, and now the car is not worth a lot of money, so he gave up.
In this regard, Zhang Junyan believes that if the lessee fulfills all contractual obligations and the lessor does not transfer the ownership of the leased property to the lessee as agreed in the contract and refuses to perform the transfer of the vehicle, it constitutes a breach of contract, and the lessee can request the other party to bear the responsibility for the breach of contract.
In addition to the stipulations on financial leasing contracts in the Civil Code, the 2020 Interpretation of the Supreme People's Court on the Application of Law in the Trial of Financial Leasing Contract Dispute Cases, etc. also determine the rights and obligations of all parties, which can be used as vehicle owners to safeguard their legitimate rights and interests. in accordance with.
"After the car payment is settled, if the leasing company fails to go through the transfer procedures with the car owner, the leasing company is suspected of breaching the contract." Wang Yanhui said that the car owner can file a lawsuit in the court with the contract and the payment voucher, requiring the leasing company to perform the transfer obligation and undertake the responsibility according to the contract. corresponding liability for breach of contract.
Wang Yanhui reminded that when car buyers choose the car financial leasing model, they should pay attention to whether there are overlord clauses in the standard clauses of the contract that obviously increase the buyer's obligations and reduce the seller's responsibilities, stipulate the conditions for transferring the ownership of the leased property when the lease term expires, and the relevant breach liabilities after breach of contract. , to avoid disputes in the future.