On The Legal Protection Of Assignment Of Receivables In International Trade Risk

With the change of the international trade environment, The settlement methods of international trade is also transforming,in which non-traditional settlement methods such as credit sale prevailing increasingly. Thus, substantive receivables were originated in international trade. Assignment of receivables in international trade is an instrument to finance, avoid risks and promote flow of funds by utilizing receivables. Appearance of this new finance form brings challenge and chance upon law and code existing. Assignment of receivables in international trade belong to civil and commercial acts.As the complexity of legal relationship itself and the domestic and international macro-elements ,such as politics,economy and legality,have an affect on assignment of receivables,so though international conventions such as The United Convention on International Factoring and United Nations Convention on the Assignment of receivables in International Trade restrict the assignment of receivables, research on the issues of assignment of receivables in international trade is still very essential . Based on The United Convention on International Factoring, United Nations Convention on the Assignment of receivables in International Trade and domestic law of different countries, this dissertation uses the methods of the comparative analyses, the historical analyses and the empirical analysis to research on several issues of assignment of receivables in international trade. This article mainly analyses the legal foundation, legal essence and several importance legal problems of assignment of receivables in international trade, summarizes the risks and legal precaution countermeasures and put forward my opinions and proposals regard ing with legal precaution assignment of receivables in our country. The primary investigated contents and conclusions are as follows:Chapter One defines the assignment of receivables in international trade. The assignment of receivables in international trade includes the international assignment of receivables, the domestic assignment of international receivables and the international assignment of domestic. Assignment of receivables in international trade has two forms that are sale and security. Factoring, forfeiting, assets securitization, project financing are the primary forms of assignment of receivables in international trade in practice. Factoring mainly applies to assignment of receivables of much shorter settlement period for the export of comsumer goods. Forfeiting mainly applies to capital goods export trade of which settlement often uses bills and notes of intermediate duration in assignment of receivables. Both factoring and forfeiting belong to receivables outright purchase financing. Receivables used in assets securitization could be dispersive, different categories, in existence or in future. However, they should originate stable cash flow after structural arrangement. Project financing obtain finance by putting future income as security or assigning future receivables. Both assets securitization and project financing are structural financing of receivables.Chapter Two is legal system and analysys of assignment of receivables. It analyses the legal foundations and several important legal problems of assignment of receivables in international trade. The legal foundation of assignment of receivables in international trade includes international conventions (such as The United Convention on International Factoring and United Nations Convention on the Assignment of receivables in International Trade), international practices and theory systems of creditor's rights assignment based on several representative countries' civil codes or commercial codes. The legal foundation of assignment of receivables in international trade is credit-right assignment, and its essence is credit-right finance. Though analysis of several importance legal problems of assignment of receivables in international trade, It comes into several conclusion as follows: The relationship between assignor and assignee is contractual relationship; The relationship between assignor and debtor is credit and debt relationship; The relationship between assignee and debtor is actually new credit and debt relationship; The relationship between assignee and the third parties is claimants competing relationship. Generally, receivables in international trade are of alienability expect the precluded status by contract property or by legal provisions. Future receivable so long as can be able to distinguish bear a relation with the transfer and have some certainty could transfer. Assignment of receivables in international trade should satisfy the requirements of internationalism, alienability, idea express and contract form.Chapter Three primarily introduces main risks and legal precaution countermeasures of assignment of receivable in international trade. In assignment of receivables in international trade, assignee face most of the risk, including validity risk of assignment of receivables, flaw risk of receivable rights, risk of debtor's defense, risk of originality contract modification, risk of exchange rate and interest rate fluctuating and political risk. Clear off status enquiry and select favorable investment environment and law enviroment is the best way against risks.Chapter Four mainly analyzes the application status and legal precaution of risk of assignment of receivables in international trade in our country, and put forward some proposals. Our country has been equipped with market environment and legal environment for assignment of receivables. However, the scale and trade turnover of receivable assignment are not in accordance with the specific gravity of our country's foreign trade occupied international trade of the hold world. Related legislation's hierarchy is low; there have contraventions among different provisions; some problem is not definite. Therefore, it needs to be further improvement. Our country should develop international factoring preferentially, pay more attention to assets securitization and project financing, highlight the alienability of receivables, especially future receivables, uplift legislation hierarchy, increase protection of assignee's interest, form priority rule conformed with the situation of our country, ratify or access The United Convention on International Factoring and United Nations Convention on the Assignment of receivables in International Trade.This article 's innovation embodies in: theoretically put forward legal basis and essence of assignment of receivables in international trade and analyzed primary legal problems; Bring up countermeasures and proposals for application.