Research On The Law Application Of Domestic Factoring Contract

Factoring is a contract whereby the market subjects transfer its accounts receivable come from of commercial transaction to a factor,the factor provide financial services such as financing,protection bad debts,management or collection of receivables.In the '90s,the Bank of China successively signed international factoring agreements with Germany,the United States,Britain and other countries,and gradually began to handle international factoring business,but the scope of application was not extensive.After China's entered the World Trade Organization in 2001,Bank of China began to pay attention to factoring,and other banks gradually promoted the development of factoring.Since 2011,China has become the world's largest factoring market,and its business volume has been increasing with years,gradually becoming one of the important ways of capitalization in the financial market.In recent years,factoring developed rapidly in China,factoring contract disputes happened frequently,but because our country has not yet formed a unified and complete legal rules of factoring,lack of related legislative or judicial interpretation,and the complexity of factoring dispute,leading to District Court lacked legal basis and applicable difficult of the law when hearing factoring contract dispute cases.This thesis is divided into three chapters.First,in the introduction part,puts forward three questions in the factoring disputes,include the confirmation of the validity of special accounts receivable in factoring contracts,the notice of transfer of accounts receivable and the exercise of the factoring right of recourse.At the same time,this thesis combs the research situation of domestic factoring,and extracts the viewpoints to be elaborated in this paper.Chapter one,starting from the origin and development of factoring,analyzes the legal provisions on factoring at home and abroad and defines the domestic factoring in China.By comparing the Principal-agent theory,conveyance surety theory,subrogation liquidation,pledge of obligation theory and the assignment of claims,the assignment of claims can comprehensively explain various functions of factoring,so it is more appropriate to define the legal nature of domestic factoring as special assignment of creditor's right.Chapter two,analyzes the difficulties and causes of the legal application of domestic factoring.First of all,the effectiveness of the special assignment of creditor's right in a factoring contract,when the underlying creditor's rights are false,as long as the factor without knowing it,it should not be considered as invalid.Recognize the transferability of future accounts receivable,but in order to ensure the balance of interests of all parties and the stability of the market order,should make appropriate restrictions.If the receivables transferred by the creditor are accompanied by a clause forbidding the transfer,the factoring contract shall still be valid.The debtor shall not fight against the well-intentioned factor,even if he transfers the creditor 's rights are not be pledged by appointment between parties.Secondly,with regard to the subject and effectiveness of the notice of assignment of creditor's rights,the factor shall be endowed with the right of notice in future legislation,but need relevant documents.The notice shall be effective on the debtor unless the debtor knows it.Finally,for the problem of factoring people involved in exercising the right of recourse,adopt different means of recourse in different situations,before the creditor repurchase all accounts receivable and obtain the actual payment,factor have the right of recourse against the creditor and the debtor.One of them has fulfill the obligation,the other one can release from corresponding obligation.Chapter three,puts forward some suggestions to perfect the applicable rules of domestic factoring contract.At the legislative level,relevant laws and regulations on factoring should be issued,and the existing receivables transfer system,creditor's right transfer notice system and the exercise of right of recourse in China should be improved.At the judicial level,legal provisions related to the current factoring disputes should be interpreted or guiding cases issued to make up for the deficiency in the legislative vacuum.