Research On The Legal Problems Of The Pledge Of "the Right Of Return On Franchise"

Franchising is an important way for the construction and development of infrastructure and public utility projects,and it has received increasing attention in the process of social development.The franchise right is granted by the government as the subject,and the civil subject is granted the exclusive right to own and manage the infrastructure and public utilities.A financing guarantee method in which the right of return on franchise is burdened with the pledge is widely used in practice.However,the judicial rulings have inconsistent issues in the disclosure of pledge rights,establishment registration,and realization of pledge rights.The root cause of the above problem is that the legal nature of the franchise income right is not accurately recognized.Before defining the right of return on franchise,it is necessary to sort out the development history of the income right pledge.At the end of the last century,China has begun to try to invest in the construction and operation of franchise projects.In order to solve the financing problem,pledge of the income generated from franchise projects has become a financing guarantee method.The State Council and various provinces have successively promulgated laws on pledge of income rights involving various types of infrastructure and public utilities,providing legal basis for practical operations.After the "People’s Republic of China’s Property Law" came into effect,its established Numerus Clausus Principle crowded out the original legal basis for pledge of income rights.The “Regulations on Pledge Registration of Accounts Receivable” that was subsequently implemented incorporated the franchise revenue right under the concept of accounts receivable,and further carried out pledge operations in the name of accounts receivable,resulting in inconsistent judgments in judicial The problem.Regarding the legal nature of the franchise revenue right,it is divided from the "right bundle" of the public-private mix of franchise rights.Franchise income right has economic benefits and is a new type of property right.The pledge of the franchise revenue right will not violate the requirements of the public interest attributes,and under the needs of the steady construction and development of the society,the franchise revenue right enjoyed by the operator will be stable.Therefore,the right of return on franchise is a new type of property right with qualitative properties.Linked to the concept of accounts receivable,the problem caused by the pledge of right of return on franchise in judicial practice is that the pledge publicity standards are different.The pledge of accounts receivable is established when the pledge contract is registered with the credit bureau.In practice,there is a judgment that the pledge is only completed when the credit reference agency and the competent government department register.Another judgment held that the pledge contract was established when the government authority registered it.This problem occurs because the concepts of franchise revenue rights and accounts receivable are mixed.The right of return on franchise is fundamentally different from the accounts receivable.There are differences between the two parties in terms of the cause,the specificity of the obligor,and the status of the right holder.In order to improve the pledge system of revenue rights,the franchise revenue rights should be included in the scope of the object of the rights pledges separately in legislation.Pledge of franchise revenue rights can cause registration related issues.In practice,there are referees’ opinions on the supplementary registration pledge after the implementation of the Property Law and the expiration of the registration period.The pledge of income rights is in line with the needs of social development.Based on the consideration of the property,it can be found that the pledge of income rights can effectively play the role of the property of income rights.In order to avoid registration-related problems,the registration publicity system of the franchise income right pledge must also be established and improved.The third problem caused by the current pledge system of income rights is improper judgment of pledge right realization.In the judicial ruling represented by Guiding Case No.53,regarding the realization of the pledge of the franchise income right,the people’s court ruled that the pledgee could directly collect funds from the proceeds from the franchise project operation to pay off the debt.The realization of such direct compensation is reasonable and efficient,but has no legal basis.In addition,in view of the fact that there is no basis for reliance,there are cases in which no clear judgment has been made,and only the vague judgment pledgee has priority.The reason for the above problems is that the special nature of the franchise income right is not considered in law,which has a certain degree of public welfare attributes and personal dependence.It is indeed more appropriate to use direct compensation to realize pledge rights.Therefore,a piece of legislation on the way to realize the direct compensation of the pledge right of the franchise income should be added to the legislation.In addition,the original methods of auction and liquidation are also applicable to the pledge of income rights and should be retained.