| As the famous economist MacLeod has put it:"If we were asked-who made the discovery which has most deeply affected the fortunes of the human race? We think,after full consideration,we might safely answer-the man who first discovered that a Debt is a Saleable Commodity." Account receivable financing is a kind of creditors' right financing. Its core is to transfer the interests in accouts into cash in advance through assignment and pledge. It is the important difference between assignment of creditors' right and transfer of tangible property. It accords with the logic of finance inherently and represents assignment and pledge of creditors' right extrinsicly. If the static creditors' right is the link of credit, the dynamic creditors' right endows it with the second life. Take the accouts receivable as example, before transfering into cash they can not only be used by corporations,but also the corporations need take the burdern of taking care of them. But if they can be assigned easily, the future cash will come into being instantly and they can be used for the corporations' enlargment. This is no doubt a kind of alchemy. Due to this, account receivable financing has been widely used Account receivable financing. However, in our country, it only makes the first step. How to perfect the relevant regulations in order to provide a free and safe environment for the account receivable financing is quite important. In addition, account receivable financing is a means to convert future benefits into present benefits. It is an attribute which displays the creditors' right has dominated our modern economy life. The independent character, property character and circulation character are enforced. So I believe that they study on this subject is meaningful both in theory and practical aspect.Concretely, in order to accelerate the development of account receivable financing, the legislation must focus on facilitating the assignment of credit. This legislative sense does not only influence the regluations about the cession and pledge of credit, but also it will alter the value judgment and interest measurement. More emphasis should be put on proteciton of transaction security in assignment of accouts. This objective may be achieved mainly by protecting the assingnee of account receivable. This is the theory key of whole thesis. All of parts will focus on how to facilitate the assignment of credit, and analyse the relationship between the development of account receivable financing and advancement of regluations about the cession and pledge of credit in the capital market. The purpose is to find deficiencies in our contract law and property law and perfect them in both interpretative theory and legislation theory.Except the introduction and the conclusion, this thesis consists of seven chapters, mainly discussing the means and the subject matter of the accounts receivable financing, the publication method,filing procedure, priority rules, the constitution of the notification mechanism, and so on.The first chapter is about the general of accounts receivable financing. It mainly dicusses the connotation, extention,system basis and practical value of accounts receivable financing.Firstly, accounts receivable is accounting concept originally, but when it has been absorbed in legislation, it has another sense. It takes double essense. It is the nature of monetary creditors' right and the expectancy right. This determines that the accounts receivable are appropriate for financing and demand to participate in the financing. The regulation on filing of accouts financing only focuses on the former and neglects the latter,it should be altered. Secondly, as far as the scope of accouts concerned, it is important to concentrate on the special enviroment and backgroud in our country. As to the most debated toll right, it should belong to accounts. This classification will improve the toll right finacing through using the electronic filing system. In additon,it is necessary to enlarge the scope of accouts receivable to include all of the claims for payment. This not only softens up principle of legal prescription of real right, but also makes the diffenrent filing institutons united gradually. Thirdly, this paper discusses the system foundation and realistic value of accounts financing. In the former, the improvement in both quality and quantity of creditors'right is one facet. The other is alteration in legislations which is to admit, protect and improve the assignment of creditors' right. In the latter, accounts receivable financing is practically important in encouraging the development of middle and small enterprises, and in broadening the business scope of financing institutions. It can play a greater role when it can operate in coordination with relevant regulations. This is also practical sense of this theses.The second chapter is on the means of the accounts receivable financing. By reviewing its practical application in many countries, the means of the accounts receivable financing begins to display the trend of diversification. According to the intention of interested parties and the risk born, the means can be classified as the pledge of accounts receivable and the assignment of accounts receivable.Firstly, there are many differences in the aspect of secured transaction. In continental law system, the pledge of creditors' right is the only means which is admitted in civil law code. However, at present, security transfers that have rooted in practice has taken the place of the pledge and becomes the most popular form. In UK, both the fixed charge and floating charge has been widey used. In America, it is stipulated in the Aticle 9 of UCC and become a kind of important secured transation. In our conutry, the pledge of accout receivable which has been stipulated in property law can play the same role as security transfers, so the latter is not necessary. As to the interpretation of rules in property law, we should not be confined to the traditional continental law system. On the contrary, the rules in UCC ought to become the main materials we can learn from. In addtiton, the mechanism of floating charge or floating lien can be absorbed in our law.Secondly, compared with the pledge of the accounts receivable, the is basically same in the economic effects and system constitution, so it is not necessary to stipulate in the statute. In addition, although some scholars point out in fact, the pledge of accounts receivable and the assignment of accounts receivable belong to the same system, they are different in the five aspects, including the nature, the functioning mechanism,the risk born, the benefits and the effects. As to the nature about the assignment of accounts receivable with recourse, this thesis thinks it ought to be treated differently. The asset securitization, as the burgeoning means of the accounts receivable financing, is a kind of assignment of accounts receivable.Thirdly, although there are many differences between the pledge and the cession, in the aspect of legal application, there are mixing trend both in continental law system and anglo-american law system. The former adopts the quasi-application legislative technique, and the latter adopts absorbing mode. Therefore it is reasonable to constitute a superior concept- accouts receivable financing to include both of them. In legislation, on one hand,we should constitute the common legal rules, on the other hand, we also shoud keep the different rules. At last, The quasi-application legislative technique is the most proper means for our country.The third chapter is on the subject matter of the accounts receivable financing. It is the problem that which kind of accounts can be used for fiancing. In practice, it is rare that only an accout be used for fiancing. On the contrary, many accouts being united is normal. This mode can not only improve the efficiency of ccounts receivable financing, but can also reduce the risks which are confronted with the banks. But if this mode is applied, there are many problems about the validity of assignment of future accounts receivable, accounts with the terms of forbidding the assignment, parts of accounts and so on. In this aspect, the development of economy promotes the alteration of legislations. In a word, the enlargement of accouts is the typical representation of the idea which focuses on facilitating the assignment of credit.Firstly, in order to make good use of the future benefits which have property value and conquer the obstacle of time and space, the assignment of future creditor's right has gradually been permitted. Therefore to accommodate the development of social economy, financing through the assignment of future accounts receivable has also been acknowledged by law. Furthermore this assignment is feasible and necessary. But in order to protect the assignor's creditors' right, the process and the effect of this assignment should be limited to a certain extend. On one hand, we must admit permitting them to participate in the financing is feasible and necessary. But in the other hand, in order to protect the assignor's creditors' right, the process and the effect of this assignment should be limited to a certain extend.Secondly, when it comes to the accounts with the terms of forbidding the assignment, both at the aspect of value-judgment and interest measurement, it is probable to deny the effect the effect of these terms in order to improve the financing efficiency and low the checking cost. Especially it is important for protecting the transaction security. But the assignors must compensate the loss which has been done to the third debtors. Although the parts of accounts receivable are allowed to be used to finance, its effects should be limited in order to prevent the third debtors'benefit from materially being undermined.Thirdly, as to those accouts who are owed by special parties and a part or parts of accouts, it shoud be generally admitted unless there are specil policy considerations.The forth chapter is on the publication method of accounts receivable financing. The publication can both protect the interests of assingnees and transaction security. Furthermore, it becomes the key to facilitate the assignment of credit. In other countries, there are many means for this purpose,for example,the delivery of certificate of obligation or the notification. But there are many deficiecies in both of the two means. Especially they can not display the right status completely. Due to this, filing has become the modern publicaiton mode. Our propety law also adopts this mode.Firstly, the filing has the function of dispalying information, determining and affiirming the priority of assingnees. But the funtions of state control, presumption of rights and bona fide protection are unnecessary and impossible. These decide that the filing for accounts receivable financing is quite diffenrent from the traditional registration system for real estate. So the notice-filing which is originated from UCC is the best choice for the publication of accounts financing.Secondly, although the notice-filing can accomplish the goal of publication, if the costs it pay are quite great, it is still not a proper publication method. This is why some coutries insisit on not adopting this method. But as the development of technology, especially the electronic technology, the new type of notice-filing making use of electronic highway is more efficient. So the notice-filing is no doubt appropriate in modern society.Thirdly, as far as the effectiveness of notice-filing concerned, the essential ideology of registration which is stuipulated by property law is not suitable, and registration confrontation doctrine is a more proper mode.The fifth chapter is on filing procedure of accounts receivable financing. Whether the the filing can function well is mainly dependent on the construction of filing procedure. This procedure is not only consisted of time, space and parties. Behind it there are interest conflicts. So the legislative should make a correct choice. As to the filing procedure, its frame must still concentrate on how to facilitate the assignment of accouts. This can be accomplished by lowing the filing cost which the assigneer must pay and protecting their benefits.Firstly, the notice-filing and electronic-filing system is the basis of this procesure. Filing in the credit investigation institution is reasonable. But the assingnees should bare the burden of delivering some information in detail when inquired by third parties. So the relevant contents should be added into the filing regulation.Secondly, as to the contents of the filing, the core of notiec-filing is that the burden of providing information is share by filing instituitions and personal parties. The name of assingnees is the most important information because they are criterion used for searching. And they must be precised or will milead third parties who want to get information. In contrast, the names of assingers is less important. The description of accouts receivable is not required to be accurate. It is enough to reasonably identify the collateral so the general description is permitted. The lapse period and the amouts which are secured are both nesserray in the system.Thirdly, in the concrete filing and serching procesure, unilateral application and formal examination are the basic principle. As to the modification filing, objeciton filing and other filing should be distinguished from the real estate registration procesure.The sixth chapter is on the rights conflict and the solution mechanism in the accounts receivable financing. In other words, it is on the priority rules.The diversification of financing means decides that the rights conflict could be possible and complex. The first-to-file rule can take effect in each type of rights conflict. But its establishment depends on the construction of the registration systems which can embody high efficiency. How to refine the priority rules and aborb them into the legal systems is also should be considered.Firstly, as to the twice pledge, the first-to-file rule should be adopted. In our country, the electronic filing can make sure that the time of application and filing is almost simultaneous. This will make the first-to-file rule more reasonable.Secondly, as to the the twice cession, the first-to-file rule should be adopted in principle and be stipulated in civil code law. Of cource, in order to protect the non-professional parties' interests, the exceptional priority rule is "the first notice,the first right" rule.Thirdly, as to the conflict between the inventory mortgager and the seller in the extending ownership reservation is inevitable in the future. The basic way of solving the conflicts lies in establishing reasonable priority rules. But the precondition is that the filing information can be unitied.At last, when the debtors become bankcuptcy, the exsited accouts and the future accounts are confronted different fates. The former can prevail over the unsecured creditors but the latter will lose in the battle with the unsecured creditorsThe seventh chapter is on the implementation of accouts receivable fianancing,especailly on constitution of the notification mechanism for the accounts receivable financing.Firstly, in order to encourage accounts receivable financing, the benefits of the assigners should be put much emphasis on, however, the third debtors'benefits can not be neglected. The notification mechanism can play an important role in balancing the interests and it is the key factor in the process of implementation of accouts receivable fianancing. The notification is a kind of conceptual information, its effect will come into being when it arrive at the debtors or the debors know the assignment.The notification has the absolute effect in order to make the third debtor be aware of the person he should pay for. But the notification can not become the determining factor for the ownership of the accounts, in order that the secretly factor and the securitization finance can be achieved smoothly. The assigner can deliver this notification, however, the effect of this kind of notification should be limited. The notification in advance is of no effect, but the delaying notification and the succeeding notification is effective. The form of the notification should not be limited to the written form. The notification form which derives from the factor and the securitization finance ought to be affirmed.Secondly, the rules for protecting the interests of assingees should be stipulated in detail. Especially the rule of defense and set-off should be perfected and refined further. It is necessary to insist on the principle that the debtors' interest can not be materially impaired by the assignment.Thirdly, the rules for protecting the interests of assingers can not be neglected, especially the rules about how to exercise right of defence and setoff. Forthly, there are not any rules about how to implementate the pledge of accouts and this belongs to legal loophole.But it can analogy apply the prevalent rules in contract law. |
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