Research On The Legal System Of Commercial Factoring In China

Factoring is a commonfinancial means in modern commercial trade,originated from the Cuban Billen dynasty period businessmen with their outstanding debt to third parties in advance to exchange cash behavior,in the tide of economic globalization into our country,and to solve the problem of financing difficulties of small and medium-sized enterprises in China,financing expensive play an important role.At present,China's total factoring business is the world's first,income and risk go hand in hand,the rapid development of commercial factoring in the process of many legal disputes and contradictions.Prior to the Chinese Civil Code(Draft),there was no legal system in our National Commercial Law that specifically regulates commercial factoring business,which hinders the efficiency of transactions,endangers the safety of financial markets,and hinders the nationwide promotion and development of commercial factoring business.In this context,the establishment and improvement of the commercial factoring rule of law system is of great practical significance to improve the efficiency of transactions,ensure transaction order and promote the development of factoring business.On the basis of the existing research,this paper mainly adopts the method of legal hermeneutics and the method of comparative analysis,based on the basic theory of civil and commercial law,based on the practice of factoring business in China,with the help of foreign beneficial legislation and practical experience,and the problem consciousness is oriented,hoping to build a study with Chinese characteristics in the era of the Civil Code.The commercial factoring legal norm system,which embodies international standards,makes a modest contribution.This paper takes the legal issues in commercial factoring as the research object,follows the research context of the legislative proposals of commercial factoring concept,the current situation and deficiency of china's legislation,the practice and inspiration of extraterritorial legislation,and the regulation of commercial factoring system.Specifically,in addition to the introduction and conclusion,the full text is divided into four parts to discuss:The first chapter,commercial factoring under the legal field.This chapter mainly discusses the legal connotation of commercial factoring,legal characteristics,the legal effect of commercial factoring behavior and the normative significance.First of all,based on the review and practice of domestic and foreign literature to introduce the origin,change and legal meaning of commercial factoring,this paper holds that commercial factoring is a comprehensive financial service based on the transfer of accounts receivable by creditors,including financing,collection of accounts receivable,management and bad debt guarantee,generally involving accounts receivable creditors,The three-way subject of the debtor and factor,which accounts receivable and factor,mainly embodies the legal relationship between the contract of sale and the relationship between the creditor's rights and the legal relationship,and the legal connotation of "claim sedenteand" best reflects the legal connotation of commercial factoring.Secondly,commercial factoring has five legal characteristics,such as the legality of factoring subject qualification,the legality of commercial factoring object,the validity of the transfer of accounts receivable,the necessity of the existence of the basic contract,and the professionalism of factoring behavior.Finally,the commercial factoring behavior with accounts receivable as the core has dual efficiency both internally and externally,in view of the important position of commercial factoring in modern financial activities,it is important to standardize commercial factoring to perfect the socialist rule of law system with Chinese characteristics,improve the efficiency of commercial activities,prevent the credit risk of financial markets,and open the financing channels for small and medium-sized enterprises.The second chapter,China's commercial factoring legislation status and shortcomings.This chapter mainly summarizes the existing commercial factoring legal norms in China on the basis of the current legislation of the shortcomings and shortcomings.First of all,through the visual way to comb china's current commercial factoring legal norms can be seen,although our country has not made formal legal norms on commercial factoring,but some civil and commercial basic laws,departmental regulations,local regulations,administrative licensing,industry norms,etc.The fragmentation of norms is also one of the reasons why the current commercial factoring legal disputes are less efficient.Secondly,the existing norms of our country are analyzed by the draft civil code,the existing legal provisions related to commercial factoring,the departmental regulations and the normative documents of the departments,and the local normative documents.Finally,on the basis of the above analysis,it is proposed that there are the lack of commercial factoring legal norms,the lack of commercial factoring transaction rules,the different definition of the nature of factoring contracts,the lack of commercial factoring supervision system and so on,and correspondingly pointed out the Civil Code Contract(Draft)(Second Review Draft)Article 552 problems.The third chapter,business factoring extraterritorial legislation overview and useful experience.Based on the analysis of the legislative practice of business factoring in Britain,the United States,Germany and India,this chapter puts forward useful experience scanted for our legislators.This paper holds that the United States and the United Kingdom,as the originating countries of modern commercial factoring,the economic power and the legal power of the Common Law system,have important enlightenment to improve the domestic commercial legal norms in China.At the same time,German civil law has a great influence on China's civil law,in view of the German law on the relative perfection of the legal system of business factoring,so it is worth discussing and learning.India and China,both emerging market countries,face similar legal challenges,and India's legal regulation of business factoring has much to learn from.In particular,the practice of the above four countries has important enlightenment to the mode of supervision of commercial factoring behavior,the qualification of commercial factoring companies,the legislation of commercial factoring contract specification and the construction of commercial factoring supervision system.Chapter four,the regulation of the commercial factoring system of legislative proposals.This chapter puts forward legislative proposals to improve the legal system of commercial factoring in China from the aspects of top-level design and specific system formulation.First of all,the basic principles of civil and commercial law have a value-guided role in the standardization of China's commercial factoring system,especially the principle of equality,voluntary principle and fairness of civil law,and the principle of efficiency and security of commercial law is the basic principle that legislators should focus on when legislating.Secondly,by standardizing factoring subject qualification,expanding the scope of accounts receivable and constructing multi-layer system norms to improve China's commercial factoring legal system,to determine factoring supervision responsibilities,refine factoring regulatory rules,establish dynamic supervision system as the core to improve the commercial factoring supervision system is the specific path to improve China's commercial factoring legal system.Finally,this paper puts forward specific suggestions for amendment to Article 552 of the Civil Code Contract(Draft)(Second Review Draft).