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Research On The Legal Issues Of The Transfer Of Accounts Receivable In Factoring Contracts

Posted on:2020-05-23Degree:MasterType:Thesis
Country:ChinaCandidate:F N YangFull Text:PDF
GTID:2436330602453141Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Factoring is a comprehensive financial service business which takes creditor’s transfer of receivable creditor’s rights as the premise and integrates financing,collection of receivables,management and guarantee of bad debts.Factoring business is produced by businessmen on the basis of a large number of trading practices with the economic development and technological progress.So far,it has a history of more than 60 years in European and American countries.China’s factoring business started late.In February 1992,the Bank of China joined the Factoring Chain International and became the first FCI member in China.In June2012,the Ministry of Commerce issued documents to pilot commercial factoring in some development zones.After nearly ten years of exploration,the bank factoring business in our country has developed rapidly,and commercial factoring has sprung up.It has effectively solved the problems of "financing difficulty" and "financing expensive" of real enterprises,and achieved the goal of increasing wealth by buying and selling creditors’ rights.However,factoring,a new business,has challenged the traditional theory of civil law since it came into being.Traditional civil law theory generally holds that the transfer of real right needs to be delivered or registered in order to achieve worldwide effectiveness,and it applies to bona fide acquisition;while the transfer of creditor’s rights does not need to be registered and publicized,it does not have worldwide effectiveness,nor does it apply to bona fide acquisition.When people apply this theory to the transfer of accounts receivable,it is difficult to justify whether it is applicable to the theory of juristic act of real right or the theory of creditor’s rights.Therefore,in order to alleviate its conflict with traditional civil law theory,German and Japanese scholars put forward the theory of "quasi-real right act",while the United States Uniform Commercial Code legislation on "registration first,rights first" seems to regard the transfer of creditor’s rights as a typical "real right act".Although the traditional civil law theory of our country can not explain this phenomenon,afterall,theory serves practice,not the contrary.Based on this understanding,the paper holds that the core of factoring is the transfer of accounts receivable,and the key to the transfer of accounts receivable is when the transfer of accounts receivable takes effect.For this reason,the paper focuses on "the validity of factoring accounts receivable transfer" and consults teachers and colleagues.The paper is divided into four parts.The first part explores the origin and meaning of factoring,factoring is actually the abbreviation of factoring agreement,and the core of Factoring Agreement is the transfer of accounts receivable.Accounts receivable under factoring include current accounts receivable and future accounts receivable.Among them,future accounts receivable should conform to the "identifiably" factor when the contract is established or when the creditor’s rights are transferred,which is the qualified accounts receivable.Transfer of factoring accounts receivable essentially belongs to the category of assignment of creditor’s rights in civil law,but it is different.Transfer of factoring accounts receivable and pledge of accounts receivable are different in appearance.If the attributes of their rights are different,the applicable legal rules are different,but pledge of accounts receivable will result in assignment of creditor’s rights.The paper holds that China should unify the registration system of accounts receivable transfer and pledge.The second part discusses the internal effect of the assignment of accounts receivable,that is,the effect on creditors and assignees.It mainly discusses the performance of the internal effect and the effective elements of the internal effect.Focusing on the elements of endogenous validity,i.e.the validity of the prohibition of transfer agreement,the author holds that although the Contract Law of our country stipulates the principle of "the prohibition of transfer agreement validity",it does not have a clear validity for bona fide third party.In order to stabilize the parties’ legal expectations in the near future,the principle of "forbidden transfer agreement is valid,but not against bona fide third party" should be confirmed through judicial interpretation.In the long run,the Contract Law should be amended to establish the principle of forbidding the invalidity of transfer,especially for commercial factoring.The third part discusses the effectiveness of the assignment of accounts receivable to the debtor,mainly focusing on the performance of the effectiveness of the assignment of accounts receivable to the debtor and the effective elements,and focuses on the subject,content and mode of notification of the assignment of accounts receivable.The paper holds that China should adopt the expansionary interpretation of purpose to clarify the obligation of creditors to notify debtors and the right of assignees to notify debtors.In order to balance the burden or inconvenience that may be brought to the debtor by the notification of the assignee,the debtor should be given "equal force",that is,the debtor has the right to request the assignee to provide reasonable evidence of the assignment of creditor’s rights,and otherwise,the debtor has the right to refuse.At the same time,to adapt to the development of means of communication,notification can be either written or oral or other means agreed by both sides to improve efficiency.The fourth part discusses the effectiveness of the assignment of accounts receivable to the third party,mainly discussing the meaning and scope of the third party and the manifestation of the conflict of rights between the factorist and the third party.Combining with the legislation of foreign and international conventions,it is proposed that China should improve the registration system of the assignment of accounts receivable and unify the assignment of accounts receivable.And pledge registration system,the establishment of a unified registration system,the establishment of "registration first,rights first" conflict resolution principle.
Keywords/Search Tags:Factoring contract, Transfer of accounts receivable, Internal effect, External effectiveness, Effectiveness to third partie
PDF Full Text Request
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