Study On The Judicial Dilemma And Path Of Factoring Disputes

As an emerging financial service,factoring effectively solves the problems of capital occupation and debtor’s delay in payment caused by credit sales trade in the current buyer’s market environment,and alleviates the problem of "financing difficulty" for small and medium-sized enterprises that have difficulty in obtaining pledge of high-quality assets.,on the other hand,factoring in China started late,and the complex and varied types of factoring,and involves the transfer of accounts receivable factoring process,management,collection and bad debt guarantee and financing,and other links,and the regulation of our country legislation level for factoring is missing,the theoretical circle of law to the property of factoring that also controversial,such as around the court in judicial practice for factoring dispute processing of all kinds of issues exist obvious connection with different phenomenon.Although the civil code(draft)of the People’s Republic of China(draft)(December 16,2019)sets up a special chapter to stipulate factoring contracts,its provisions are still relatively rough and cannot fully solve the problems of factoring disputes in the trial practice,so there is room for further discussion.Besides the preface and conclusion,this paper is divided into four parts:The first part explains the basic theory of factoring.This part firstly defines the concept of factoring and sorts out the rights and obligations of each party in factoring business.Secondly,factoring is divided into different types according to different classification standards.Finally,the paper analyzes the legal nature of factoring,introduces the four theories of the legal nature of factoring in the academic circle,and points out the shortcomings of the four theories,highlighting the particularity of factoring.The second part of the trial of factoring disputes applicable to the relevant legal norms are sorted out.This part,from the perspective of international law,focuses on sorting out the legal norms related to factoring from the perspective of domestic law,and analyzes the defects and deficiencies of China’s factoring legislation in combination with the civil code(draft): lack of unified norms,low level of effectiveness and many legislative vacuum zones.The third part analyzes the disputes and difficulties in the judicial practice of factoring disputes.This part mediator Richard dispute case of no suit network from 2017 to 2019,the relevant judicial documents typed analysis,to find out the problems of factoring disputes in judicial practice among different judgments in the same case,it mainly including: the cause ofaction is not unified,the jurisdiction of the court is not clear,the parties,the litigation status,contract effectiveness cognizance standard uncertainty,interest rates and the dispute over the liability for breach of contract that is not reasonable.The fourth part is about the way choice of judicial trial of factoring dispute.This part is aimed at the disputes of factoring disputes in the trial practice,combined with the provisions of the civil code(draft)on factoring contracts and the provisions of foreign legislation,and proposes the corresponding solutions and paths.The main points are as follows: it is necessary to separate the factoring dispute from other civil cases in view of the non-uniform causes of cases;In view of the unclear jurisdiction of the court,it is believed that the jurisdiction provisions in the basic contract shall prevail.However,when there is a dispute between the factoring party and the creditor just because of the signing or performance of the factoring contract itself,the competent court shall be determined according to the provisions in the factoring contract.In view of the uncertain litigation status of the parties,it is considered that the factoring should be supported to bring a lawsuit with the creditors and debtors of receivables as the defendants.When the factoring chooses only one party as the defendant,it should determine whether to add the other party as the third party according to the selection of the factoring party and the specific situation of the case.In view of the inconsistency of the standards for determining the validity of a contract,it is considered that the validity of a factoring contract should be determined according to the influence of false accounts receivable,prohibition of assignment and whether to issue a notice of assignment of creditor’s rights.In view of the unreasonable determination of interest rate and liability for breach of contract,it is considered that the upper limit of interest rate and the scope of compensation for breach of contract should be determined according to the type of factoring business and the right of the factoring person to choose and claim.