Research On The Transfer Of Future Accounts Receivable In Factoring

On December 23,2018,at the seventh meeting of the Standing Committee of the 13 th National People's Congress,the draft contract of the Civil Code was considered for the second time.The factoring contract was stipulated in a special chapter,which helps to solve the financing difficulties of enterprises.Factoring contract is a contract in which creditors of accounts receivable transfer accounts receivable(including actual accounts receivable and future accounts receivable)to factorists,who provide services such as financial communication,accounts receivable management and collection.Accounts receivable in the future is the creditor's right or claim for payment which has the basic legal relationship of the contract and the debtor has not started to perform all or part of the obligations in the basic contract at the time of transfer.According to the theory of German Real Right Act,it is a burden for creditors and factorists to conclude an assignment contract for future accounts receivable.The act of transferring creditor's rights to factoring after the actual generation of future accounts receivable is a disposition.The disposition applies the principle of determining the object,while the contract of creditor's rights only needs to be fulfillable,and it does not need to be determined to the specific subject matter.Therefore,the validity of future accounts receivable transfers can be affirmed.According to this principle,when describing factoring contracts based on future accounts receivable,only factoring firms create claims without directly changing rights.The effect of transfer of creditor's rights occurs only when accounts receivable actually occurs and is determined.This is the biggest difference when describing factoring contracts based on accounts receivable and transferring actions have internal effects.In practice,most of the factoring contracts are synchronized.Factor neglects this by transferring a large number of realistic accounts receivable in a package together with future accounts receivable.The standard of "notification arrival doctrine" has been established in China's practice.The time when notification of receivable transfer takes effect is of great significance to the disposal of debtors who fulfill their obligations.In order to protect the first assignee and transaction security,we can consider setting up a system of advance notification.Our country's law should be in line with international factoring in the subject of notification of transfer and establish legislation allowing both the assignor and the assignee to notify.The factoring contract objectively requires that the right status of future receivables be disclosed in an open,external and easy-to-find form.The rule of concurrent treatment of the right of "registration prior to right" can give priority to protecting the right holder who has been registered prior to the creditor when he transfers the same future receivables repeatedly.In essence,the assignment of creditor's rights is only a change of creditor's rights,and neither the debtor nor the content of creditor's rights and debts has changed,that is,the identity of debt remains unchanged.The right of defense and the right of set-off should not be reduced or vacant.Since future receivables do not actually produce the effect of no transfer of creditor's rights,new facts of defense may arise when the debtor receives the notice of transfer and when the receivables are actually generated and determined.The debtor's right of defense can be deferred until the future accounts receivable is realized,in order to protect the debtor's trust in the existing legal relationship before the subject matter is determined.At the same time,factoring,as an integral part of credit services,should fully understand and evaluate the creditor's true trading credit status when describing factoring,strictly perform the procedures of inquiry and registration on the Internet,otherwise,they should also bear corresponding fault liability according to fairness.