| Factoring is a kind of commercial financing mode with rapid international and domestic development in recent years.In order to optimize the business environment and respond to the dispute of factoring contract in Chinese judicial practice,Chapter 16 of the Civil Code stipulates factoring contract.The judicial interpretation of the guarantee system further clarifies that the factoring contract involving the guarantee function belongs to its scope of adjustment,and brings it into the atypical guarantee system.It clearly defines the legal nature of recourse factoring as a contract with guarantee function.Under the legislative style of the integration of civil and commercial,a commercial contract should be stipulated in the contract part.A valid factoring contract should meet the following basic elements: First,the creditor and factoring of accounts receivable should be the commercial subject,and the commercial factoring company should abide by the regulations of our financial supervision institution.Secondly,accounts receivable should be transferable,because the core structure of factoring legal relationship is the transfer of accounts receivable with factor’s services.Thirdly,the contents of factoring contract can’t violate the law,such as factor can’t engage merely in collection service.Finally,although the written form is not the effective element of the factoring contract,all parties bear the adverse consequences of failure to prove.The transfer of future accounts receivable,false accounts receivable and bill payment claim affects the validity and effectiveness of the factoring contract.First,to judge whether future accounts receivable can be transferred,we should determine the judgment criteria according to the essence of future accounts receivable that they have not yet occurred.From the perspective of encouraging transactions and promoting financing,the agreement between creditors and factoring can recognize according to the “specific standard”,which is effective.The factoring party has the right to request payment of future accounts receivable when both are agreed,rather than the future accounts receivable actually occurs.If the transfer occurs at this time,it may fall into its bankruptcy property in the case of creditor bankruptcy.Second,if the factoring party knows that creditor transfers the fictitious accounts receivable,the factoring contract is invalid,otherwise,does not affect the factoring contract’s effectiveness.To define the factoring party whether performance the review obligation,we should consider includes not limited to the transfer of accounts receivable,such as whether the basic transaction contract is performed,whether the scope of future accounts receivable is specific and so on.The relationship between the fictitious accounts receivable of creditor and debtor are invalid in the situation of non-knowledgeable factor and the false legal act of conspiracy should interpret as the special norm and general norm.Factoring party can claim liability for breach of contract to creditors.Although the creditor’s rights are barrier-free as the object of infringement,the infringer should be the subject outside the legal relationship of creditor’s rights and debts.Creditors and debtors are one of the parties to factoring contract,so they do not meet the constitutive requirements of tort liability.Third,the bill payment claim shall not be the object of the pledge of accounts receivable,and whether it can become the accounts receivable in the factoring contract shall adhere to the financial supervision principle that the factoring company may not engage in the bill discount business.The Civil Code stipulates the priority between the multiple transfers of accounts receivable and the priority of registration in turn,the priority of notice,and the compensation in proportion to the transfer without registration and notice.It has changed the logical path of the transfer of creditor’s rights according to the time when the creditor’s rights are transferred and the contract is established.Factoring contract with the transfer of accounts receivable as the core can’t avoid the general provisions of creditor’s rights transfer,factoring contract for the debtor should follow the general norms of creditor’s rights transfer,the special point is that the factoring notice can notify the debtor,but should be accompanied by documents.At the same time,the debtor has the right of defense and set-off against the factor. |
