Protection For Assignee (Pledgee) And Debtor In Assignment Or Pledge Of Account Receivable

In the current jurisprudence of our country,there are controversies of regulations of credit assignment’s effects to the third party,blanks of implementation models of pledge in account receivable pledges and vacancies of defensive rights of debtor,so the juridical practice,lack of unitive directions or references,fall into the awkward situation of similar case without similar judgment with an embarrassing result that the legal system is out of order.Credit assignment’s effects to the third party is the key point of assignee’s safety protection in the account receivable assignment.By the summarization and review of current authoritative theory,assignment agreement confrontation doctrine can not take a balance between confirming the ownership of creditor’s right and alerting the risk,neither assignment notification confrontation doctrine,nor assignment notification validity doctrine,nor assignment registration validity doctrine.But assignment registration confrontation doctrine can.Registration confrontation doctrine has advantages as follow: Firstly,‘registration’,based on the own characteristic,and as the public announcement condition of account receivable assignment,has more natural superiority than ‘assignment notification’.Secondly,based on the accept of normative acts in legal practice and the market recognition,‘registration mechanism’ has its rationality.The construction of registration mechanism,specifically,we take conclusions on fully demonstration: Firstly,there’s no need to register the ordinary civil creditor’s rights.Secondly,the third party has no obligation to inquire the registration of account receivable.Thirdly,‘registration’ can not replace ‘assignment notification’,and the efficacy of account receivable assignment to the debtor depends on notification.Fourthly,when the account receivable is repeatedly assigned to several assignees,kind or not don’t affect the ownership of creditor’s rights which is decided by registration confrontation doctrine.Fifthly,if no any of several assignees accords to confrontation condition,the assignee of the precedent efficient contract may own the creditor’s rights.Sixthly,the later assignee in accordance with complete confrontation condition can own the creditor’s rights.Using the legal principle of registration confrontation in the connection between account receivable assignment and the pledge system can resolve contradictions in the case types of coexistence of assignment and pledge of account receivable.Account receivable pledge’s valid requirement and the regulation to debtor are core problems of debtor protection in the account receivable pledge system.The condition and the mode of execution of account receivable pledge is the precondition of formulating measures to debtor protection.Because of the characteristic of account receivable pledge,it is necessary to set up ‘charging right’ as the execution mode of the pledge.Considering the term of payment of the principal creditor’s right may be different from that of the pledge of creditor’s right,it ought to provide different modes to coordinate the different situation,to realize the pledgee’s control to payment or priority of compensation.‘Notice of setting pledge’ is not only the essential condition of pledge charging,but also the requirement of validity of pledge to the debtor.On the point of view of debtor protection,‘notification partial effect mode’ can mostly prevent the adverse effect of account receivable pledge to the debtor,safeguarding the place of the debtor.In order to avoid the material erosion of the status of debtor,we should vest debtors with the right of defense and the right of offset.Firstly,the defense of debtor is valid if its foundation is existing when the notice of setting pledge reaches.Meanwhile,the debtor doesn’t need to obligate to ‘inform the ground for defense when receiving notification’.Secondly,the right of offset may be set up when notice reaches,no need to exercise instantly,expectancy period expired might as well.At the same time,give the pledgee the right of inquiring the debtor before the pledge.Future account receivable,the special object of assignment and pledge,has the core problem that what’s the standards of account receivable specialization and when is the effectiveness time of act of disposition.Primarily,the specialization of account receivable ought to distinguish different period of time : When the credit assignment or pledge contract is set up,future receivable needs to come to ‘partial confirm’,no need all elements existing.Credit assignment or pledge contract is effective so long as the ‘credit element’ which is uncertain initially may be confirmed no later than the credit actually occur.When the future account receivable actually occurs,the future account receivable must be ‘absolute certain’,for only if all the credit elements satisfy specialization,the future account receivable can be transferred or the pledge can be established.Furtherly,the time of taking effect of assignment and pledge: When the pure future account receivable occurs,the assignor acquires the creditor’s right initially,and then transferred to the assignee.In case of the future account receivable with foundation,the creditor’s right is transferred when the account receivable practically generates,so the assignee take the creditor’s right straightly with retrospective effect up to the time of signing contract.When the pure future receivable is pledged,the pledgor gains the creditor’s right as the account receivable practically generates,and pledge it to pledgee,then the pledge established.On condition that the future receivable with foundation is pledged,pledge is set up when the account receivable practically generates with retrospective effect up to the time of pledge registration.