Research On The Pledge Of Accounts Receivable

The pledge of accounts receivable is a way of establishing pledge on accounts receivable as a channel for corporate financing,but its contents in the Real Right Law of the People's Republic of China(hereinafter referred to as “the Real Right Law”)are prescribed broadly.Beginning in 2015,the People's Bank of China began to organize commercial banks,trust agencies,securities companies,asset management companies,factoring companies and financial leasing companies to participate in amending the “Measures on Registration of Pledged Accounts Receivable”((hereinafter referred to as “Registration Measures”)which was originally implemented in 2007.In October 2017,the People's Bank of China issued the revised “Registration Measures”,which made adjustments to the definition of the accounts receivable,registration of transfer,registration period and other registration items.However,there are still disputes over the scope of the pledge target,the resolution of the rights conflict and the realization of the pledge.What's more,we will find the difference considering the change of rights,while looking back at the pledge of accounts receivable from the perspective of “the Real Right Law” and “Contract law” respectively.Therefore,this paper analyzes the above problems as follows:The first part is mainly based on the concept of accounts receivable and the problem of the pledge of accounts receivable.The Real Right Law incorporates accounts receivable into the scope of the pledge of rights,which draws on the legislative experience of the United States Uniform Commercial Code,while the “accounts receivable” originating from the accounting field is generally considered to be creditor's rights academically.However,since China has not established a system of pledge of creditor's rights,it is inevitable that there will be doubts: Does Article 228 of The Real Right Law apply to other general creditor's right? If so,what is the meaning of the “old water” representing creditor's right is filled into the “new bottle” on behalf of accounts receivable? On the other hand,the pledge of accounts receivable based on accounts receivable will encounter problems both theoretically and practically: first of all,the pledge interest shall be created at the time of registration of the pledge interest in the Real Right Law,however,the registration function of the registration agency for pledged accounts receivable is closer to the doctrine of registration confrontation.Therefore,scholars argue that the effect of “registration” of pledge of accounts receivable is not on publicity and credibility.Secondly,the “Registration Measures” that defines “accounts receivable” and attempts to include the transfer of creditor's rights into the scope of registration for the first time seems to violate the “Numerus clausus”,and the validity of the registration effect of assignment of creditor's rights is also doubtful in practice;thirdly,the pledge of accounts receivable and the assignment of accounts receivable are highly similar in essence,but the difference in the constituent elements leads to institutional competition.The “dual track” mode is not conducive to solving the problem of double disposal of accounts receivable.Based on reflection on existing problems,the second part of the article proposes to reconstruct the pledge system of accounts receivable.Under the premise of respecting the legislation of "the syncretism of civil commercial law",different transfer modes of receivables rights should be clearly defined in the Real Right Law and the Contract law.But the consistency of the pledge of accounts receivable and the assignment of the accounts receivable should be guaranteed for the mission of cohesion between them.According to the current situation of China's legislation and the experience of extraterritorial law,the "consensus effective + registration confrontation" rule is more suitable for the transfer of accounts receivable rights as well as protecting the interests of the parties.At the same time,the content of “notifying the debtor” is added to the pledge issue to ensure the protection of the debtor in the relationship of the pledge of the accounts receivable as well as to realize the integration of the pledge of accounts receivable and the assignment of accounts receivable much more comprehensive..The third part of the article is to continue the thought of improvement of the pledge system of accounts receivable on the issue of the realization of the pledge of accounts receivable.The realization of accounts receivable pledge refers to the realization of chattel pledge,which ignores the difference between accounts receivable pledge and general chattel pledge.Therefore,breaking the limitation of “prohibition of Fluidity Clause” and proposing to adopt the “direct collection” method in the realization field of the pledge of accounts receivable are more suitable for realistic demands.“The real estate usufruct” is a special form of accounts receivable and should be arranged separately in the realization of the pledge.