Research On Legal Issues Of Future Debt Factoring

Since the civil code made factoring contracts famous,the gaps in the relevant legal systems have been filled,which to a certain extent meets the market development needs of factoring economic business.The judicial interpretation on the guarantee system also explicitly includes factoring contracts in the atypical guarantee system,responding to the controversies in recent years about the legal nature of factoring in theory and judicial practice.With the development of the market economy and the improvement of relevant laws,china has become the country with the largest amount of factoring business in the world,and in the future,debt factoring will become one of the financing channels for small and medium-sized enterprises.In this context,this paper takes the future debt factoring practice as the window,analyzes the legal problems encountered in the development process of future debt factoring,and strives to find a future debt factoring regulatory path that meets the needs of market development and civil law theory.Future claims are special,and there are problems such as eligibility,judgment criteria,effective time and effectiveness of publicity when describing factoring.According to the current mainstream view in the academic circles,future claims refer to claims that do not exist at the time of transfer and are likely to occur in the future.It is mainly manifested in the transfer of income rights,including the right to income from tourist attractions,the right to income from student apartments,the right to medical income,and the right to income from real estate such as highways,bridges,tunnels,and ferries.Since future claims are a right of expectation,the creditor may not have fulfilled its contractual obligations at all and may not be able to confirm the claim at all.Therefore,there is uncertainty as to whether future claims will arise and whether the debtor will be determined.It is precisely because of this characteristic that although the civil code responds to the issue that claims can be transferred as the object of assignment of factoring contracts in the future,there are still many problems that need to be solved urgently.The emerging future debt factoring cases are the realism and concretization of controversial issues in the academic community.In the current practical circles,the legal issues of future debt factoring are mainly manifested in four aspects: The eligibility of pure future claims,the considerations of future debt factoring criteria,the effective time and the effectiveness of publicity.In view of the issue of pure future claims,the practical circles discuss whether the underlying contract is a necessary condition;on the issue of judgment criteria,the courts argue between the courts on whether the future claim is described as factoring the debtor must be specific,whether the source of proceeds is relatively stable,and whether the nature of the claim is clear;for the future claim as the effective time of factoring,the court mainly focuses on the "notice effective" and "actual occurrence time";for the issue of the publicity effect of the future transfer of the claim,the court mainly focused on the scope of validity of the notice and registration.The study of domestic and external legislative experience and theoretical achievements provides excellent experience for the improvement of china’s future creditor’s rights factoring legal system,and proposes: relax the restrictions on the negotiability of pure future claims,dynamically design the judgment criteria for future debt factoring,adopt "contract formation theory" as the preferred principle of factoring business,and clarify the effectiveness of notice and registration to protect the rights and interests of factors and debtors.Improve the current future debt factoring system,clarify the current controversial issues in the academic and practical circles through legislation,and propose: First,through legislation,future claims will be defined as "accounts receivable with a high probability of occurrence",so as to clarify the eligibility of pure future claims.Second,establish the rule of "principle + dynamic considerations",take "predictability" and "certainty" as the principles for judging future claims as factoring,and build a dynamic mechanism for realistic considerations of future claims.That is,first study and judge the degree of certainty of each consideration factor in reality,and then confirm the specificity of the future claim by accumulating a certain threshold,and then comprehensively issue relevant judicial interpretations to unify judicial adjudication standards.Third,it is clear that "at the time of contract formation" is the effective time for the transfer of claims in the future,so as to protect the rights and interests of the factor,so as to help the development of the future debt factoring industry.fourth,the registration of the assignment of future claims is formally granted in the form of legislation with adversarial effect.fifth,under the premise of adhering to the requirements for the effectiveness of the notice,different regulatory paths are adopted according to whether the entity performing the factoring debt is a creditor or the debtor: The former does not need to notify the debtor,and at this time,it is only necessary to require the creditor to bear corresponding responsibilities according to the relevant rules of the contract.the latter,depending on the specificity of the debtor,should actively assume the obligation of active notice when the debtor is specific,and in the case of the debtor is not specific,to assist the factor in exercising its rights by strengthening the creditor’s performance of the subsidiary obligation.