Research On The Legal Issues Of Fundamental Asset Transfer And Bankruptcy Isolation In The Commercial Factoring

As an emerging model of accounts receivable financing,the Commercial Factoring Asset-Backed Securitization benefited from the dual stimulation of the reality demand and policy promotion.This model through Asset-Backed Securitization to open up the connection channel between enterprises and market funds,through the synergy of the supply chain between upstream and downstream to optimize the overall credit structure,introduce factoring companies to achieve strict control over the cash flow of fundamental assets,finally,a wide-channel,low-cost,and high-efficiency financing effect will be realized.But on the other hand,the Commercial Factoring Asset-Backed Securitization with numerous participation,the business process closely and the legal relationship is complex,combined with our country in Commercial Factoring and Asset-Backed Securitization are lack of complete legal norms,there are gaps or conflict areas where legal rules are applied,which brings risks to the development of the Commercial Factoring Assets-Backed Securitization,but also hinders the development of our country’s accounts receivable financing model.This article focused on the fundamental asset transfer and bankruptcy isolation of the Commercial Factoring Assets-Backed Securitization,the prominent problems under the existing legal framework are discussed,and put forward some concrete suggestions on the way to perfect the fundamental asset transfer and bankruptcy isolation in the Commercial Factoring Assets-Backed Securitization.Part 1:This part introduces the issues of fundamental asset transfer and bankruptcy isolation in the Commercial Factoring Assets-Backed Securitization from a macro perspective.Firstly,this part briefly summarizes the background of the Commercial Factoring Assets-Backed Securitization,and explains the definition of the Commercial Factoring Assets-Backed Securitization;Secondly,this part discusses the participants and business processes of the Commercial Factoring Assets-Backed Securitization;Finally,with the fundamental asset transaction as the core,the origin of fundamental asset transfer and bankruptcy isolation are discussed,the scope of fundamental assets in the Commercial Factoring Assets-Backed Securitization was limited,and the legal nature of fundamental asset transfer and bankruptcy isolation and the relationship between the two were analyzed.Part 2:This part systematically analyzes the legal issues of the transfer of fundamental assets in the Commercial Factoring Assets-Backed Securitization combined with the current credit assignment system.Firstly,this part discusses the transfer of future receivables in the Commercial Factoring Assets-Backed Securitization,and points out that the transfer of future receivables has problems such as scope unclear,effective time unclear and publicity mechanism unknown.Secondly,this part analyzes the issues of receivables transfer notice in the Commercial Factoring Assets-Backed Securitization,and points out that if the notification specification is applied to the Commercial Factoring Assets-Backed Securitization,it will face many difficulties,and the law does not clearly identify the effectiveness of some special notification forms in practice.Finally,this part discusses the issues of publicity mechanism of receivables transfer in the Commercial Factoring Assets-Backed Securitization,and points out that it is necessary to build a unified publicity mechanism of receivables transfer under the background of receivables financing increasingly prosperous.Part 3:This part discusses the legal issues of bankruptcy isolation in the Commercial Factoring Assets-Backed Securitization from two aspects:the construction of special purpose vehicles（SPVs）and the realization of real sales.Firstly,the main forms of SPVs are introduced,and the limitations of the Asset Support Special Plan in the Commercial Factoring Assets-Backed Securitization are analyzed.Secondly,this part analyzes the real sales and its identification standard,and concludes that there is no specific real sales standard in the Commercial Factoring Assets-Backed Securitization,and there are many potential risks in the transaction arrangement that may affect the real sales identification.Part 4:In response to the above-mentioned problems,this part puts forward supplementary and perfect suggestions from multiple paths,including:perfecting the transfer specification of future receivables,clarifying the scope of transferable future receivables and the effective time;Perfect the standard of notification of assignment of creditor’s rights and explain the effectiveness of special notification forms;Constructing accounts receivable transfer registration system,and according to the different needs of commercial and civil the effectiveness of accounts receivable transfer registration to be distinguished;To optimize SPVs through two ways,namely,improvement and reconstruction,to improve the business specification of the Asset Support Special Plan,and to introduce SPVs in the form of corporate fund when the time is ripe.Defining the standard of real sales and reasonably designing the terms of transaction which may affect the real sales.In the process of writing this thesis,the following three kinds of research methods are mainly used:First,literature research method.By collecting and reviewing relevant works,papers and data,etc.,the fundamental asset transfer and bankruptcy isolation in the Commercial Factoring Assets-Backed Securitization are systematically understood.Second,the case analysis method.This paper combined with the real operation cases of the Commercial Factoring Assets-Backed Securitization and discusses the application of the existing rules,and then analyzes the shortcomings of the existing rules.Third,the cross-study method.The Commercial Factoring Assets-Backed Securitization involves multiple disciplines such as management,finance and law.Based on legal theories,this paper applies the theories and methods of multiple disciplines to carry out cross-examination and research.