Research On Pledge Of The Right Of Return On Franchise

As one of the ways to achieve public-private partnership,franchising has been attracting more and more public attention.In order to meet the financing needs of franchise projects,the pledge of the right to benefit from franchise rights has been widely used as a new type of guarantee in practice.At the end of 2015,the supreme people's court issued No.53 guidance of Pledge of franchise proceeds and the 2017 revision of the measures for the registration of pledge of accounts receivable,they both added the franchise rights pledge into the accounts receivable pledge,but the two documents did not give a reasonable explanation to the right to profit from franchise is mortgageable and include the rationality of accounts receivable,and even the practice of measures on registration of pledge of accounts receivable is suspected of violating the statutory property right.In practice,there are no uniform rules for the publicity and realization of the right to pledge the right to profit from franchise,which leads to the dilemma of practical operation and judicial judgment.The first part puts forward three questions: First,the pledge basis of the franchise right income pledge and the law of accounts receivable;second,the pledge publicity system of the franchise right is imperfect;third,the pledge of the franchise right income pledge The way is diverse.The second part is mainly to demonstrate the pledge of the right to benefit from the franchise.This section is divided into two subsections.The first section,through the analysis of the process of franchise generation and the relationship of rights,demonstrates the nature of franchise rights.In the second subsection,according to the legal characteristics of the right pledge,the pledge of the franchise is derived from the four characteristics of property,transferability,pledge and specificity.The third part mainly discusses the legal orientation of the pledge of the right to benefit from the franchise.This section is demonstrated through three subsections.In the first subsection,according to the characteristics of the right pledge and the uniqueness of the franchise management rights,franchise projects with pledge of income rights can be clarified in various types of franchise rights.According to the different contents of the project,the franchise is divided into two categories: service provision and infrastructure construction.Inthe second subsection,the connotation and scope of the rights of real estate income are clarified,and the relationship between the right of franchise rights and the right of real estate income is clarified.In the third subsection,through the horizontal comparison between the two types of franchise rights and the legal characteristics of accounts receivable and real estate income rights,the legal positioning of the pledge of income rights of two types of franchise services,such as service provision and infrastructure construction,is distinguished.The class franchise rights are included in the feasibility of the accounts receivable and infrastructure construction franchise rights to be included in the real estate income rights.The main content of the fourth part is to discuss the pledge publicity system of the franchise rights.First of all,the author conducts research and discussion on the general publicity of the security interest,and demonstrates that the pledge of the franchise income right should establish the establishment method of the registration essentialism.Secondly,comparing the advantages and disadvantages of the "independent" or "dependent" publicity model,this paper believes that the publicity system for the pledge of accounts receivable and the real estate registration system(dependency)are more justified.Finally,in order to resolve the contradiction between the non-substantive review of the People's Bank of China Credit Information Center and the Real Estate Registration Center and the inherent requirements of the pledge of the pledge of the franchise rights,the author suggests using a notarization method to allow the notary office to act as a substance.Review.The fifth part is the discussion on the realization of the pledge rights of the franchise rights.This part begins with the general way of realizing the right to pledge,and refers to the realization of the pledge of the pledge.It is recommended to realize the pledge of the franchise right in two cases: under the normal operating status of the franchisee,the highest reference should be made.In the case of the No.53 guidance case,the pledgee sub-contractor collects the fee from the third debtor;in the case of abnormal business operations,the pledgee may auction the proceeds of the franchise under the supervision of the competent department.Selling.And the priority of the auction proceeds.At the end of this part,the author defines the priority period of the pledgee's preferential compensation by clarifying the two periods of the pledge period of the franchise income right pledge and the franchise income pledge scope: the franchise income pledge is established from the date of registration.The pledgee has the right to receive compensation for the proceeds within the scope of the pledge.The expiration of the registration period does not affect the validity of the pledge.