Research On The Legal Issues Of Pledge Of Accounts Receivable

Accounts receivable pledge originated from trust pledge at the earliest.With the development of modern economy,as a new financing method,accounts receivable pledge began to show its prominence in the financial field.In the process of legislating the pledge of accounts receivable,there has been a theoretical controversy about whether the pledge of accounts receivable can be made.Finally,under the pressure of realistic significance of the pledge of accounts receivable to solve it,the Real Right Law finally included the accounts receivable in the scope of the rights that can be pledged.Although accounts receivable are endowed with pledgeability by property law,it is still far from perfect and can not adapt to the vigorous development of pledge of accounts receivable in practice.Therefore,interest disputes about pledge of accounts receivable in judicial practice are constantly emerging,and China urgently needs to establish a perfect legal system of pledge of accounts receivable.To meet the needs of social development.Regarding whether the receivables prohibited by contract can be used as the eligible subject matter of pledge,China should use the international common practice to deny the validity of the "prohibition of special agreement" clause and give the pledge of the receivables prohibited by contract.n order to balance the interests of the debtor,the debtor's claim for damages to the creditor should be guaranteed.Regarding whether the future accounts receivable can be regarded as the eligible pledge target,the doctrine of legal mitigation of property rights and the system of movable property floating mortgage provide the theoretical basis for the future accounts receivable as the eligible pledge target.Our country should conform to the mainstream trend of international legislation,affirm the pledgeability of future accounts receivable,and limit the pledger's credit rating and the content of pledge contract to the greatest extent.Reduce the financing risk of future accounts receivable pledge.With regard to the establishment of pledge of accounts receivable,China should affirm that the signing of written contracts and the registration of pledge are the essential elements for the establishment of pledge right,regard the real existence of accounts receivable as the substantive elements for the establishment of pledge right,and increase the confrontational elements for informing the debtor of accounts receivable of the establishment of pledge right.As for the way to realize the pledge of collecting accounts receivable directly,it does not conflict with the "prohibition of liquidity" clause and has unique value that can not be replaced by subrogation for collecting creditors' rights.Our country should keep in line with the comparative law and affirm the legitimacy of the way of collecting pledge directly.However,the exercise of the right of direct collection is limited by the liquidation period of the main creditor's right and the creditor's right of accounts receivable.With regard to the conflict of rights in the realization of pledge right of accounts receivable,the pledgee's unauthorized transfer of accounts receivable is of undetermined validity,the pledgee's recognition of creditor's rights has the effect of assignment,and the assignee should also have the pledge right over the assignee's creditor's rights;if the pledgee does not recognize the pledge,the assignment of creditor's rights is invalid,the bona fide assignee can.China should establish a unified registration system for chattel guarantee,and coordinate the conflicts of interests with floating mortgage according to the principle of "registration first,right first".According to the principle of good faith,if the cause of legal set-off exists at the time of pledge establishment,the debtor's legal set-off right should not be restricted.The pledgee notifies the debtor at the time of pledge and obtains his promise to abandon the exercise of the right of set-off.The realization of the pledgee's right is not affected by the right of legal set-off.According to the principle that the new law is superior to the old law,the conflict of interests between guarantee and pledge guarantee should be coordinated in accordance with the provisions of 176 of the Property Law.