Research On The Legal Issues Of Assignment Of Accounts Receivable In Factoring Contract

In May 2020,"Civil Code of PRC" was formally reviewed and approved at the Third Session of the Thirteenth National People’s Congress,and factoring contracts were formally written into the law as an independent chapter of the contract.However,due to the lag of the legislation itself,some legal disputes surrounding factoring contracts have not been resolved.This article selects three legal issues that are controversial in factoring practice,combines judicial practice and legal theory,and conducts in-depth research,hoping to provide reference opinions for the future legislation and justice.Except for the introduction and conclusion,this article can be divided into three parts:The first part discusses the legal nature of the transfer of accounts receivable in factoring.In response to this problem,there are currently four theories in the academic and practical circles,namely "the assignment of creditor’s rights","the assignment of guarantees",the "indirect payment theory",and the "hybrid contract theory".The behavior is explained.The above-mentioned theory has certain rationality,but it fails to reasonably explain the legal nature of the transfer of accounts receivable in factoring with recourse.This article analyzes the characteristics of the factoring business of domestic factoring contracts from four aspects:the transaction purpose of the factoring contract,the content of the transaction,the repayment of the factoring debt,and the legal effect.On this basis,it further proposes the "conditional assignment of claims".At the same time,it analyzes the rationality of this viewpoint from two angles:the relationship between the liability of the factoring debtor and the liability of the creditor in the substantive law,and the guarantee function of the factoring.The second part discusses the eligibility of future monetary claims as transfer targets in factoring.First,it introduces the meaning and theoretical classification of future claims.Secondly,from the perspective of comparative law,it examines the attitudes of foreign and international treaties to different types of future assignment of claims.Finally,on the basis of drawing on the beneficial experience of foreign countries,the comprehensive domestic factoring business trial practice affirmed the feasibility of future accounts receivable as the transfer target in factoring,and further discussed the effectiveness of the transfer and the eligibility criteria for the transfer.,And the time when the transfer takes effect.The third part discusses the review obligations of factoring creditors to the underlying transaction contract.First,it introduces the theory of duty of care in Anglo-American tort law,and introduces the development of duty of care.Secondly,it summarizes the main consideration factors for the determination of duty of care in domestic judicial practice.Then,extend the above basic theory to the commercial practice of factoring business.Analyzing and demonstrating from three aspects,it is concluded that the factoring party is obliged to review,and its review standard should adopt the review principle of formal review as the main and substantive review as supplementary.Finally,on the basis of the above conclusions,the amendments to the provisions of Article 763 in "Civil Code of PRC" were proposed.