Research On The Factoring With Recourse

Since the commercial factoring pilots were launched in Shanghai,Tianjin,Shenzhen and other places in 2012,the factoring(especially the factoring with recourse)in China has developed rapidly and prosperously.Although the relevant authorities have been working to improve the legal environment of factoring business for a long time,a sound civil legal system has not been successfully established and so far,there is no relevant special regulations to manage and regulate the factoring business and adjust the legal relationship in factoring,which results in lots of problems and disputes.Compared with the factoring without recourse,most of China's factoring business and contracts are the recourse factoring(or “factoring with recourse”),in which the legal relationship involved is more complicated.There is also more controversy in practice related to the factoring with recourse.What is the legal nature of the factoring with recourse? What is the basis of the special rights and obligations of the relevant parties in the recourse factoring? How to judge the validity of recourse factoring under special circumstances,such as invalidation of basic contract,prohibition of assignment of creditor's rights,double transfer of accounts receivables,and the recourse factoring based on future creditor's rights? Such legal problems are in urgent need of theoretical and practical analysis and research.The first chapter of this paper mainly analyzes the concept and legal nature of factoring with recourse.The first part is to sort out the basic concepts of factoring,including its definition,function and classification.The second is to research on the controversy of the legal nature of recourse factoring in the academic and judicial practice circles,with comparative and empirical research methods.The typical views on the legal nature of recourse factoring include the transfer of the creditor's right,the pledge of the creditor's right,the guarantee by transfer of the creditor's right and the indirect payment.The last part is based on the analysis and research on the foresaid two parts.With regard to the legal nature of the recourse factoring,this paper draws the conclusion that the view of indirect payment is most reasonable.The essential legal relationship of the recourse factoring is the combination of the loan contract and indirect payment.The second chapter of this paper is to further deepen the analysis and research on the special civil legal relationship of the recourse factoring.The legal relationship of the recourse factoring mainly involves three parties: the factor(usually a bank or a professional factoring company),the creditor of accounts receivables and the debtor of accounts receivables.This chapter mainly analyzes the rights and obligations of the three parties and focuses on the special problems arising from the practice of recourse factoring,such as the range and order of recourse rights,the relationship and difference between the factoring registration and the notice of transfer of creditor's rights,the effect on the validity of recourse factoring contract when the basic contract between the creditor and the debtor is invalid or there are special terms in the basic contract to prohibit the transfer of the creditor's right,and the double assignments of the creditor's right.The corresponding conclusions are drawn to achieve the purpose of solving the theoretical problems and practical problems.The third chapter is the research on the recourse factoring based on future accounts receivables,which is a most typical special issue related to the recourse factoring.The first part is to analyze the concept of future creditor's rights,including the definition,scope and transferability of future accounts receivables.The second part of this chapter is to focus on the validity of the contract on recourse factoring with future accounts receivables.In discussing and research on such issues,a comprehensive analysis will be carried out in combination with the legal provisions outside China and the status of Chinese legislation and judicial practice.Through comparative research,this paper conditionally confirms the validity of recourse factoring based on future accounts receivables.