Research On The Difficult Issues Of Applicable Laws About Accounts Receivable Pledge

Under the condition of today's socialist market economy,the commercial competition is becoming more and more fierce,and the expansion of sales means is a good way for enterprises to enhance their competitiveness.Among them,credit sales are commonly used by enterprises,so a large number of credit sales behavior makes enterprises produce accounts receivable.Accounts receivable is closely related to enterprise credit,the problem of information asymmetry exists widely in the capital market,and it is often very difficult to credit many small and medium-sized enterprises,so banks often have risks in accepting the pledge of accounts receivable.In "no litigation "," pledge of accounts receivable" as the key word search,found that the cases related to pledge of accounts receivable has been rising from 2013 to 2018,from 92 in 2013 to 1387.Although it decreased in 2019,only 702,but also reflects that the provisions of our laws and regulations on pledge of accounts receivable are not perfect,so it is still necessary to explore the application of the law of pledge of accounts receivable,and strive to achieve consistency in practice.In theory,the research on the pledge of accounts receivable,before the introduction of the Law on Real Rights,accounts receivable has been in the field of security as "other rights that can be pledged according to law" as stipulated in Article 75,paragraph 4,of the Law on Security.In addition,article 97 of the judicial interpretation of the Law on Guarantee provides for the pledge of the right to income from real estate,and whether the essence of the pledge is a pledge of accounts receivable remains controversial.After the enactment of the Property Law of 2007,the validity of the pledge of accounts receivable has been recognized by legislation.The legal research on accounts receivable has been improved from the proper subject matter to the system defect of how to pledge accounts receivable.However,the property law has little provisions on pledge of accounts receivable and has not formed a closed-loop system.Therefore,through the application of the law of the pledge of accounts receivable,some suggestions can be put forward for the closed loop of the pledge of accounts receivable in the legal system.From the results of case retrieval,one of the legal application problems of pledge of accounts receivable is the problem of the scope of application of accounts receivable in the administration of justice.Mainly concentrated in two aspects: one is whether the right to charge can be pledged as accounts receivable.Charge right is often linked with administrative license,whether the owner of operating charge can pledge its charge right.The second is whether future receivables can be pledged.Future accounts receivable due to uncertainty,whether to meet the quality criteria.The problem with the legal application of the scope of accounts receivable arises from the fact that the concept of accounts receivable is an accounting term rather than a legal term and that,after transposing it to legal provisions,there is a lack of matching law in its application and accounts receivable can only be judged by the Registration Scheme,but the level of effectiveness of the Registration Scheme as a sectoral regulation does not adequately explain the concept of accounts receivable.The imperfection of the law causes the contradiction in the application of the law of the pledge of accounts receivable.Therefore,the right of charge and the future receivable should be included in the scope of the object of the pledge of accounts receivable by expanding the scope of interpretation,and the perfection of the legal system should be reduced by pursuing the consistency of judicial judgment.Secondly,regarding the means of publicizing the pledge of accounts receivable,according to the provisions of the property law,the pledge of accounts receivable is to adopt the principle of effective registration,without which the pledge can not be established,and the registration institution is the credit information center of the people's bank of china.However,according to the registration method,the pledge of accounts receivable adopts the registration mode of pledgee,so long as the pledgee registers the account number and uploads the relevant information,the registration can be completed unilaterally,and the debtor of accounts receivable will not be notified,and the credit information center will not carry out substantive examination during the registration process.There is no doubt that the practice of the registration center is contrary to the requirement of the property law that the registration institution should do substantive examination,and under this registration mode,the debtor of the accounts receivable is not aware of the fact that the accounts receivable has been pledged,once the debtor of the accounts receivable pays off in advance,the relationship between the creditor and the obligee is eliminated,and the interests of the bank-based mortgagee of the accounts receivable are difficult to obtain effective protection and bring risks to the recovery of the accounts receivable.Therefore,the duty of the registration authority to review should be strengthened.Even in order to facilitate the continuation of the formal review,the scope and intensity of the formal review should be increased to ensure that the relevant materials are complete and meet the requirements.In addition,rules should be established to inform the debtor of the accounts receivable to determine the authenticity of the accounts receivable and to avoid the loss of the interests of the mortgagee caused by the debtor of the accounts receivable against the repayment of the mortgagor.The subject,time and manner of issuing the notice are all expressed to better protect the interests of the mortgagee of accounts receivable.For the related problems in the realization of the pledge of accounts receivable,the current dilemma of the realization of the pledge of accounts receivable lies in the existence of untrue situation in the basic contract of accounts receivable,so the court has doubts about the validity of the accounts receivable,and then does not support the priority of the pledge of accounts receivable on it.Therefore,in order to strengthen the examination obligation of the mortgagee of the accounts receivable,the mortgagee should examine the pledge of the accounts receivable from the aspects of the pledge,the qualification of the mortgagor,the repayment ability of the debtor of the accounts receivable and the procedural matters before the registration,so as to ensure the authenticity of the accounts receivable.Secondly,even if the court supported the priority payment of the pledge right of accounts receivable,it was vague in the specific way of realization,and the nature of the accounts receivable was not suitable for auction sale,so it was suggested that legislation should support the right of the mortgagee to receive directly,so as to facilitate the realization of the rights of the mortgagee while avoiding the additional burden on the mortgagor and the debtor of the accounts receivable.There is also a reason why there is no corresponding settlement mechanism in the event of conflict of rights.Once the mortgagor exercises the right of set-off,the debtor of accounts receivable will cause losses to the interests of the mortgagee.Therefore,the settlement mechanism of the conflict of rights should be clarified so as to judge the priority of the right of set-off and the pledge of accounts receivable.If the mortgagee notifies the debtor of the receivable at the time of obtaining the pledge of the receivable,the latter shall be restricted in the exercise of the mortgage,and the act of the debtor of the receivable exercising the right of set-off to eliminate or reduce the debt shall not have effect on the mortgagee of the receivable without the consent of the mortgagee.If the debtor of the receivable is not notified at the time of the establishment of the receivable pledge and is already in a state of set-off at this time,the debtor of the receivable is allowed to exercise the right of set-off against the mortgagor,and the loss caused to the mortgagee shall be borne by the mortgagor.