Reflection And Restructure On The Pledge System Of "The Right Of Return On Franchise" Under The Numerus Clausus Principle

As one of the implementations of the idea "Public and Private Partnerships",franchising has been attracting more and more public attention.Meanwhile,as a credit addiction method of franchise financing,the right of return on franchise has also been mentioned by the policy papers of the State Council as well as the ministries and commissions directly under it.However,with such a favorable policy environment,the right of return on franchise financing is still making no progress thanks to the chaotic pledge system.Long time before the promulgation of the Property Law,there was a pledge system of the right of return on franchise set up by some policy papers.But the Property Law simply turned the former system into illegal on account of the Numerus Clausus Principle.Finally,the People's Bank of China enacted a regulation about the registration of accounts receivable and amplified its meaning to include the right of return on franchise to make it feasible to pledge.But the People's Bank of China did not have the authority to abolish the former pledge system,which finally caused a great number of problems to the practical operation and judicial judgment.In this article,the author tries to proceed from the operation and judicial judgment to illuminate the obstacles of the right of return on franchise financing and finally find the solutions to solve them.The main point of this article is that we should put an end to the messy situation of the right of return on franchise financing by either choosing the former or the latter pledge system while abolish the other one.The latter system set up by the People's Bank of China made it possible for the right of return on franchise to pledge but also brought many problems.Besides,the former pledge system seems jurisprudentially illogic and may be against with the Numerus Clausus Principle as well as the documents issued before it.The former system acknowledges the characteristics of the right of return on franchise as a transferable property,which may be more rational and feasible.In a word,the author believes that we should choose the former pledge system than the latter one.But there are still some obstacles and conflicts between the right of return on franchise and the Numerus Clausus Principle that should be adjusted carefully.As the Numerus Clausus Principle has become too rigescent to catch up with the pace of financial innovation,there is a great need to alleviate it for a better development.Meanwhile,since the National People's Congress has deliberated and passed the General Provisions of the Civil Law and the Civil Code will be enacted in years to come,it will be doable for us to establish a bland new pledge system for the pledge of rights under the Quasi-Numerus Clausus Principle.There will be four parts in this article.The first part is about the obstacles in operation and judicial judgment under the dual-pledge system of the right of return on franchise financing.The second part is about the jurisprudential basis and conflicts of the latter pledge system set up by the People's Bank of China.Then in the third part,the author tries to discuss the essence of the right of return on franchise and prove that it is tolerable to pledge.In the last part,the author tries to adjust the conflicts between the right of return on franchise financing and the Numerus Clausus Principle and tries to restructure a bland new pledge system under the Quasi-Numerus Clausus Principle.