Researches On The Legal Problems In The Accounts Receivable Financing

Account receivable financing is a kind of creditors' right financing. In the foreign country, it has been widely used. 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.Except the introduction and the conclusion, this thesis consists of five chapters, mainly discussing the means and the subject matter of the accounts receivable financing, the rights conflict and the solution mechanism, the constitution of the notification mechanism, and so on.The first chapter is about the general of accounts receivable financing. Accounts receivable is they have 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. 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.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. 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.The third chapter is on the subject matter of the accounts receivable financing. As to the future accounts receivable, 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. When it comes to the accounts with the terms of forbidding the assignment, it is probable to deny the effect the effect of these terms in order to improve the financing efficiency and low the checking cost. 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. As to the accounts receivable with security interests, if there is no special reason, the security interests ought to be assigned when the accounts are assigned. Furthermore, there is special characters in the assigning procedure.The forth chapter is on the rights conflict and the solution mechanism in the accounts receivable financing. The diversification of financing means decides that the rights conflict could be possible and complex. The twice pledge and the cession are two typical cases. And 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. 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. Credit information agency has been chosen to registration institution in property law and this formula is feasible.The fifth chapter is on the constitution of the notification mechanism for the accounts receivable financing. 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. 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.