Research On The Legal System Of Accounts Receivable Guarantee

The new type of pledge right, receivable account, has been established in Property Law. It is a new method in the security system in China that account receivable are used as financing guarantee. And it will effectively increase financing methods and relieve problems that enterprises acquire loans. Actually, receivable account is adopted as financing way in the practice. In the course of the legislation of Property Law, scholars and professionals both legal and finance fields have carried out intense arguments on the system of receivable account pledge. Finally, Article 223 and Article 228 of Property Law have been made out. Subsequently, People's Bank of China, as the organ of credit supervision of receivable account pledge, promulgated "Methods on Pledge Registry of Receivable Account" and set up a electronic system for pledge registry. However, as an intangible property, receivable account has never been used as guarantee under the continental law system. As a matter of fact, the system is established by China through studying of chattel security transactions of the Anglo-American law system. For the reason, many things related to receivable account pledge, such as concept, content, legal nature, system, public announcement, risk controlling and alienation guarantee, etc.., exists the argument from the beginning of legislation of Property Law. Although guarantee of receivable account has achieved a good affect after three years operation, there are some disputes on some issues, which perplex practices regarding financing guarantee. Therefore, it is very of significance in theory and practice, to keep a deep research on the field.This dissertation shall carry on analysis and research on financing guarantee of receivable account, and on the basis of which the relevant legal advice are given. Concretely, it is able to been divided into eight parts, introduction, concluding remarks and six sections. The key contents of the dissertation are the part of theoretical and empirical research on public announcement of receivable account guarantee.The part of introduction points out that it is innovational to make receivable account guarantee for financing in security system in China. But the system brings us out theoretical and practical problems during legal reference and transplantation. Then this dissertation makes an analysis on guarantee system of receivable account in China and gives the purpose and scope of the research. Finally, the dissertation hackles present stations and issues and put forward research approaches related to.Section one is a generality on guarantee of receivable account. Firstly, the relationship between the guarantee system and market economy are introduced and then the value of receivable account guarantee and analyzed. Secondly, this dissertation carries out expounding and research on conception and content of receivable account. From different views, the interpretation on them is not the same. The dissertation tries to give comprehensive explanations. Some rights related with receivable account are discussed. Then the concept and content of receivable account are given. The study of legal nature of guarantee system is made through the way of case analysis. Though receivable account is not thing of Property Law, the guarantee of receivable account is real right for security and chattel security, either. Finally, other methods related with financing of receivable account, which are inclusive of account transference, factoring and account securitization, are given analyzed in brief.Section Two is related with guarantee system of general obligatory right under the continental system. Firstly, a brief introduction about the security of general obligatory right is made, including concept, security system and security way. Secondly, a system of general obligatory right is introduced. Obligatory scope, establishment, public announcement, legal effect, elimination and realization are presented and analyzed. Thirdly, alienation guarantee is introduced. General situation, practice, legal structure and effect are made an analysis. Practices of alienation guarantee in Germany and Japan are given. Finally, some enlightenment of legal theory and practice under the continental legal system is give on China.Section Three is related with guarantee system of receivable account under Anglo-American law system. Firstly, the dissertation gives a introduction about guarantee and transference system of countries under Anglo-American legal system, which are mainly British and America. Secondly, the dissertation emphatically made an introduction on legal practice of receivable account, after floating charge in British is introduced and analyzed. Compared with Section 9 of Uniform Commercial Code, there are many defects. Thirdly, owing to the fact that our guarantee system of receivable account made out through studying American chattel security transactions, the relevant system of Section 9 of UCC is given in detail. The legalizations and practices are described and its influence on other countries and organizations is given. Some matters related with account guarantee in model laws of international organizations are introduced. Finally, some enlightenment of legal theory and practice under the Anglo-American legal system is give on China.Section Four is related with research on public announcement of receivable account guarantee. Because the system of public announcement is key to property law, it is the same with guarantee system of receivable account. The Section and Section Five are main parts of the dissertation. Firstly, the dissertation gives an explanation on importance of publication of real right and account guarantee in real right alienation. And a concept, method and others are given explanations, too. Secondly, the dissertation makes an analysis on guarantees systems in other countries and organizations. The systems are inclusive of contract in written, transference of obligation documents, notification of secondary debtor, registry way and effect and so on. Finally, public announcement of receivable account guarantee is expounded. It is the public way that the obligee related to shall make a registration on the electronic system. But at the present, there are many disputes on registration model and legal effect.Section Five focus on an empirical research on pledge registration of receivable account. Firstly, the dissertation introduces establishment, foundation and operation of the pledge registration system of receivable account. And based on empirical data and information from real operation on October,2007, discussion and analysis related to are conducted, and problems are pointed out, and the relevant advice is given. Secondly, some legal issues, such as, legal effects of pledge registration, examination responsibility of registration organ, right pattern of pledge registration and application of pledge registration, are discussed in the part, and legal advice is given either. Finally, the dissertation makes evaluation and establishing suggestion on the pledge registration system of receivable account.Section Six is related to perfection of the pledge registration system of receivable account. Firstly, laws and regulations in China with reference to account guarantee are enumerated and reviewed. The conclusion is drawn that guarantee system of receivable account possesses components of both legal systems, but the relevant factors of the continental legal system are dominant. Both two methods, pledge and alienation guarantee, shall be adopted in China at the present. Secondly, elements of pledge system of receivable account, including object, establishment, public announcement, legal effects, elimination and realization, are given the relevant legal suggestions. Then the dissertation emphasizes on risk control of account pledge. After characters, reasons, manifestations and others are made an analysis, the dissertation points out that risks are inevitable, and gives the relevant measures to control risk. Finally, the part is about alienation guarantee. the relevant contents deal with establishment, legal disputations and others with regarding alienation. Comparative study between alienation guarantee and pledge are conducted in the end.The Concluding Remarks emphasizes on handling of two relations during the establishing and operating. One is the relation of financial innovation and legal controlling, and the other is legal transplantation and localization in China.