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

The factoring business was formally introduced to China in 1987.After the Ministry of Commerce issued a document in 2012 to conduct a commercial factoring pilot,the factoring business developed rapidly in China.At present,China has become the world's largest factoring market.In the buyer's market,credit sales trade is prevalent,and a large amount of the seller's funds are fixed in the form of accounts receivable and cannot be used.Factoring contract as a comprehensive financial service contract based on the premise and basis of the transfer of accounts receivable effectively solves this problem.The factoring firm acquired the seller's accounts receivable on a pay-as-you-go basis,effectively solving the financing problems of these firms.The factoring business has now become an indispensable financing channel for Chinese enterprises and plays an important role in promoting China's economic development.On the one hand,the number of factoring businesses has risen sharply,but on the other hand,there is a lack of special legislative regulations,so that factoring contracts have always been unnamed contracts in China.The transfer of accounts receivable involved in factoring contract is always subject to the relevant provisions of the contract law on transfer of creditor's rights.However,as an emerging comprehensive financial service contract,its legal relationship is more complicated,and the traditional legislation on the transfer of creditor's rights has been difficult to meet the needs of the practice of transfer of accounts receivable in factoring contracts and has restricted the development of factoring business.The lack of legislation makes the court face many difficulties in handling related disputes,such as the difficulty of determining the cause of the case and the inconsistency of law application.In this context,special legislation is urgently needed to regulate the transfer of accounts receivable in factoring contracts,fill legislative gaps,and unify judicial decisions.This thesis puts forward some suggestions for the special legislation of factoring contract by analyzing the problems of existing legislation and the judicial practice.The first part of this article introduces the basic theory of the transfer of accounts receivable in factoring contracts,and pave the way for the subsequent research on the legislative and judicial issues.At first,the second part analyzes the problems faced by the transfer of accounts receivable under the current legislation: The rules for notification of transfer of accounts receivable in factoring contracts are not clear,and the lack of settlement mechanism of the right conflict after the factoring firms accept the receivables,and the conditions for the future accounts receivable transfer are unknown,and there is a legislative gap in how factoring firms can exercise recourse to obtain repayments.Secondly,100 sample cases were selected to summarize the disputes in judicial practice:The cause of the case is not uniform,and the nature of the legal relationship of the receivables transfer in the factoring contract is disputed.Some courts consider it to be the transfer of creditor's claim,namely the sale of the accounts receivable,while some courts consider it to be a guarantee for the transfer liability or indirect payment.The third part analyzes the international laws and the legislation of other countries,and summarizes the experiences that can be used in our country.The fourth part is about how to solve the existing problems by the factoring contract legislation.Firstly,it analyzes the reason why the transfer of accounts receivable in factoring contracts is essentially the sale of creditor's rights,and suggests that the future legislation on the content of factoring contracts should make it clear that the transfer is the assignment of creditor's rights,and the factoring firms has all the rights related to the account receivable.Secondly,it is a legislative consideration on the notification rules: Ensuring that factoring firms have the right to notify the debtor,the receivables transfer notice in the factoring contract should be in the form of a written notice,and the concession notice issued after the expiration of the receivables in the secret factoring is still valid.Thirdly,it's the analysis of the rationality that taking the transfer registration as the settlement mechanism of the conflict of rights in the condition of multiple transfers.Fourthly,there are some views on the factoring of future accounts receivable: The factoring of future accounts receivable should meet certainrequirements.Finally,there are some suggestions on how the factoring firms in the factoring with recourse can take bake their accounts receivable if not be paid:The debtor bears the first order repayment responsibility,and the creditor bears the supplementary repayment obligation which is limited to the principal and interest of the financing.The main purpose of this thesis is to solve the problems faced by the transfer of accounts receivable in factoring contracts through legislation.