The Applied Research Of Factoring Contract

According to "convention on international factoring" concluded in 1988 and "general rules of the international factoring regulations" concluded in 2010, factoring in the contract relations must have factoring agreement and the transfer of accounts receivable. For the factoring agreement, also known as "factoring contract", refers to the contract between supplier and factor. According to the contract, the supplier need to transfer the account receivable to a factor, in order to obtain financing or demand factor to provide for services including collecting management, payment collection, bad debt guarantee, etc. "Receivables", it’s essence is the concept of accounting category, to show the enterprise through the sales of goods, or provide labor services, so that they can ask the customer for money. In the "American uniform commercial code", add accounts receivable to the meaning of the law, that is, accounts receivable is a right to collect money from customers who buy or borrow any goods,or accept services, only such rights have note or movables deed as proof, regardless of whether they have gained through the performance of the obligations. From our perspective, the factoring as a new form of financial business, the current law did not make a clear regulation in our country. Therefore, we need to draw lessons from foreign related theory, and from the existing laws in China to find the applicable method to solve the problem of factoring contract. The current general said that account receivable is the core content of the contract, the author also takes the same view, so this article will take the accounts receivable as a clue, through deductive method to study factoring contract.The first part, the article aims to introduce the background and the impact of factoring contract. The generation of factoring began in human innovation of accounts receivable. European countries, through the bank of merchant accounts receivable discount business, gradually forming the current bank factoring mode;and the United States by assigning the account receivable business agents, gradually formed the current commercial factoring mode. From the perspective of the development of the factoring, especially in the world market, factors promote multinational companies to global sales of goods and services hugely. So the Chinese government is also actively encouraging factoring business, although the factoring in China starts late, but rapid development in recent 20 years. Of course, in addition to economic advantage, from the perspective of jurisprudence, the emergence of factoring contract has enriched the law about the type of contract, which profoundly embodies the spirit of modern freedom of contract.The second part, the purpose is to determine what rules should apply the principle about factoring contract. Factoring contract is a kind of nameless contract, and the relationship between the accounts receivable and factoring contract, which is the fundamental basis to determine the factoring contract should belongs to what rule principle. What rules should apply for factoring contract principle, the current academic circles have different views. According to the provisions of article 124 of the "contract law", factoring contract as the unknown contract, apply to similar famous contract. At first, scholars generally agree that the nameless contract apply analogy principle. Analogy principle should fully consider the purpose of the parties to enter into a contract and the real intention. Factoring contract is a contract for the purpose of financing; in addition, the earlier the factoring business, often appear factor and suppliers to sign the comprehensive credit contract, and the credit contract also often appears in the financial loan contract. On this basis, the early scholars believe that factoring contract should be applied to the financial loan contract specification. But factoring contract exist obvious differences with financial loan contract, and the author will be detailed in this paper. And some scholars put forward, factoring contract and financial loan contract are different, it is more inclined to creditor’s rights transfer contract, this is because as a core of factoring contract accounts receivable transferred to factor. But, in the factoring contract, the transfer of accounts receivable is a means of financing, rather than the purpose, this view is not in conformity with the principle of analogy, in this paper, the author will explain in detail.Since then, with the development of the understanding of "contract law" article 124, some scholars think that for the application of the nameless contract cannot be limited in on this one way. Professor Liming Wang, for example, thinks that for many properties of unnamed contract, in the balance of power under the condition of equilibrium, can take independent way, and apply the principle of combining. The current judicial practice in our country, there are also adopted the principle of case. Telling from the case, some courts in dealing with relevant factoring contract dispute case, for the cause of action that is no longer a "financial loan contract dispute" or "transfer of creditor’s rights disputes", but "civil contract dispute, dispute of negotiorum gestio, unjust enrichment disputes". But for the factoring contract dispute identified as "negotiorum gestio, unjust enrichment disputes"this kind of practice, the author thinks that inappropriate. The author thinks that can combine factoring contract on its purpose as well as the transfer of factoring accounts receivable creditor’s rights; it is defined as the financing purpose of creditor’s rights transfer disputes.The third part, aims to discuss how to apply in the concrete apply of combination principles. The author thinks, should highlight the factoring in the contract the nature of the creditor’s rights transfer, because the accounts receivable factoring contract is the most important content, and is also the key to distinguish from other famous contract. In practice, therefore, should absorb the "Creditor’s rights transfer" relevant provisions,and also consider the purpose of both the factoring financing contract. In terms of the contract, should reflect the principle of maximum protection contract, adhere to the principle of freedom of contract, Not in violation of "contract law" article 52 of contract shall be invalid and 54 contract under the premise of revocable, determine the effectiveness of the contract. At the same time, in the aspect of the transfer of the accounts receivable, comply with the notice obligation of the assignee, and also protect the legitimate rights of factor. In addition, out of respect for financing purposes, to guarantee factor’s financial right, to ensure the factoring business. In the lawsuit, the status of the parties, the author thinks, out of the need to protect the parties normal demands, and the need of judicial justice, we should take the debtor to the defendant’s position. In the legal validity of accounts receivable or whether can get reimbursement issues, the debtor plays a very important role.