Research On The Assignment Of Future Accounts Receivable In Factoring Contract

The core of a factoring transaction is the assignment of accounts receivable.With the development of the economy and society,the demand for financing is growing in spurts,and the subject matter of factoring financing is no longer limited to existing accounts receivable but extended to future accounts receivable.Factoring business in China started late but developed rapidly.As of 2021,the volume of factoring business in China is the world’s leading for four consecutive years,of which factoring finance for future receivables has taken up a large proportion.The issue of whether future receivables are assignable has been controversial in our academic circles and judicial practice.The Civil Code clarifies that it can be assigned as the object of factoring contracts,and this provision is a response to the confusion in theory and judicial practice.However,the factoring contract chapter of the Civil Code is brief,and many problems in the future assignment of receivables have not been perfected.This paper takes Article 761 of the Civil Code as the starting point,and on the basis of reviewing and analyzing the domestic and foreign legislation,the current status of academic research and the judicial practice in China,it conducts an in-depth study and proposes a solution to the issues of the eligibility criteria of future receivables in factoring contracts,the point of transfer of rights and the rules of subordination in case of conflict with enforcement and bankruptcy procedures,with a view to drawing reference for factoring practice.The article provides an in-depth study on three aspects of the cession of future accounts receivable in factoring contracts:First,the scope of the eligible objects of future receivables in factoring contracts is determined.From a systemic interpretation point of view,the relationship between future factoring of receivables and the objects of general claims cession is special and general.Article 761 of the Civil Code shall be interpreted in the same way as Article 440 of the Civil Code;In terms of the criteria for determining the scope of future accounts receivable objects,it is appropriate to introduce the dynamic system theory for judgment,and to use reasonable expectability and relative certainty as reference principles in the application of the dynamic system theory.Second,the timing of the transfer of rights in the assignment of future receivables in the factoring contract.Theoretically,there are two theoretical approaches to the timing of the transfer of rights in the assignment of future accounts receivable:retroactive acquisition and instantaneous acquisition.From the effectiveness of disposal behavior and the real situation of the assignment of future accounts receivable,instantaneous acquisition,that is,the effect of the transfer of rights occurring when the debt actually arises,is more appropriate.Third,the rule of competing rights in the cession of future receivables.When there is a conflict between the assignment of future accounts receivable and the execution procedure,the future debt that has already been assigned and registered should not be used as the subject of execution.When there is a conflict between the assignment of future accounts receivable and the bankruptcy procedure,it is reasonable to judge whether the pre-assignment is affected by the bankruptcy procedure by whether the assignor has fulfilled the obligation to pay.