Research On Legal Issues Of Factoring Contract

On May 28,2020,the Third Session of the 13 th National People’s Congress voted and passed the "Civil Code of the People’s Republic of China." As the only mixed contract,the factoring contract is listed in the "Civil Code" contract and has officially become a typical contract,providing a clear legal guarantee for the development of my country’s factoring industry.Factoring was introduced into our country and officially confirmed by legislation late,and many new ideas contained in it also contributed to the reform of the theory of creditor’s rights transfer in the "Civil Code".The content of the "Civil Code" factoring contract can better support the continued development of the factoring industry,but due to the late start of research in this field in my country,a unified conclusion has not yet been reached on the determination of the factoring with recourse.,There are problems such as the uncertainty of the scope of future accounts receivable in factoring and the flaws in the transfer of accounts receivable in factoring.Therefore,the legal system related to factoring still needs to be improved.The first chapter of this article is the introduction,which gives a general introduction to the general content of this article from the topic background,literature review,research content,etc.For detailed analysis and research on specific issues,please refer to the contents of Chapters 2 to 5:The second chapter starts with the origin and classification of factoring,clarifies the basic structure and operation mode of factoring,and provides part of the theoretical basis for the following discussion.Through the introduction of the development status of my country’s factoring industry and the introduction of the relevant legislation of factoring contracts,the importance of perfecting the legislation of factoring contracts is highlighted.Through the discussion of the legislative content of the "Civil Code" factoring contract part of the traditional creditor’s rights transfer rules,the research direction of this article is led to the identification of the nature of factoring with recourse,and the future assignment of accounts receivable in factoring Validity and limitation,fictitious accounts receivable in factoring,and settlement of multiple assignments of accounts receivable.The main content of Chapter Three is to explore the legal nature of factoring with recourse.As for factoring with recourse,because its structure is more complicated than that of factoring without recourse,the academic circles have great disagreements on its characterization.Based on the comparison of academic dispute theories and the further analysis of the characteristics of factoring with recourse,this article believes that the nature of factoring with recourse should not be overemphasized in general and its guarantee nature should be complied with the coordination of its internal system.Sex is also a point that should not be ignored.It is categorized as the assignment of creditor’s rights with a recourse clause.The right of recourse itself is a kind of joint and several liability guarantee for the debtor’s performance of the underlying contract.It can be repurchased by the creditor in accordance with the structure of a factoring contract with recourse.Receivables or assume the liability of compensation to the factoring company through indirect payment to complete the exercise of the right of recourse,which can justify the theory theoretically,and also echo the construction of the unified registration system for the latter.After completing the characterization of the factoring contract with the right of recourse,it also discusses the way of exercising the right of recourse and the legal consequences of exercising the right of recourse.Regarding whether the general guarantee liability model applies to the right of recourse,the author also puts forward his own thinking by comparing the joint liability guarantee model under the current law.The main content of Chapter 4 is the related issues of future transfer of accounts receivable in factoring.The effectiveness of the future external transfer of accounts receivable has been confirmed by the Civil Code,but the academic circles are still inconclusive regarding the definition of the scope of future accounts receivable and the determination of the time for the transfer of rights in the future transfer of accounts receivable.The comparative analysis clarifies the difference between future accounts receivable and conditional claims,and the distinction between the time when the basic contract is concluded and the time when the factoring contract is concluded,and limits the scope of future accounts receivable in terms of the certainty of contract elements.Regarding the confirmation of the timing of the transfer of rights to transfer of accounts receivable in the future,this article supports the time when the contract is signed as the timing of the transfer of rights to transfer of accounts receivable from the perspective of promoting the development of factoring financing.The risk of bankruptcy property,but it can be improved through the cooperation of the registration system.It is clear that unregistered future accounts receivable are factored.If the original creditor falls into bankruptcy,the new accounts receivable after entering the bankruptcy procedure The factoring company does not have priority over the third party.In addition,due to the uncertainty of future accounts receivable,appropriate restrictions should be imposed on their participation in factoring financing from the financial supervision and other levels.The main content of Chapter 5 is the resolution of the defects in the rights of accounts receivable in factoring.Accounts receivable that are factored in practice generally have two effectiveness flaws.One is that the related accounts receivable is fictitious,and the other is that the related accounts receivable are transferred or pledged again after being factored.Regarding the issue of fictitious accounts receivable,the legal consequences under different circumstances should be clarified.Except for the invalidation of the factoring contract in which the factoring company knows that the accounts receivable is fictitious,the factoring company can exercise without the knowledge of the factoring company.The right of revocation can also be based on the factoring contract to claim the creditor’s rights to the financing party,and the financing party can also be required to repurchase in the factoring with recourse.In addition,the factoring company can also pursue the tort liability of the debtor who conspired with the financing party to fabricate the accounts receivable.In response to the problem of multiple assignments of accounts receivable and conflicts of rights,my country has established a supporting system for registration confrontation.However,in contrast,the registration effective model can overcome the uncertainty caused by the low-level review of the registration confrontation model.In order to adopt the registration effective model,it is not necessary and not too great.Considering to learn from the prudent spirit and part of the operating procedures of the registration effective model to improve the existing registration confrontation system.This can not only reduce the difficulty of proof for the financier’s fictitious accounts receivable,but also reduce the risk of repeated assignment of the factoring accounts receivable.