| In recent years,factoring has become a hot financing tool in the capital market,and it has played an incomparable advantage in optimizing the capital structure of enterprises,promoting the liquidity of enterprise assets and solving the financial difficulties of small and medium-sized enterprises.With the promulgation of the "Civil Code" in 2021,the factoring contract has officially become a well-known contract,and it clearly recognizes the legal status of future creditor’s rights as factoring,ending the academic disagreement on whether future creditor’s rights can be transferred.Adapted to the needs of innovative development of factoring business.The "Civil Code" issued for the first time mainly established the relevant provisions on the assignment of creditor’s rights in the future at the macro level,but did not clarify the specific details.On the one hand,the legal provisions are exhaustive,and it is difficult to clarify all aspects of the details;on the other hand,it is also necessary to exert the principle of "autonomy of will" in civil law,and some details can be determined by the parties themselves.However,the factoring business has a relatively short history in my country and does not have long-term accumulation of experience;in addition,the structure of future claims is more complex than ordinary claims,and if the operation is wrong,it will cause systemic risks.In order to promote the healthy development of the debt factoring business in the future,we should explore the risks involved in the process of assigning debts in the future,and conduct research and analysis from a legal perspective.Refine the explanation,and then standardize the actual operation.The main body of this thesis is divided into four chapters,which involve the proposition of the problem,the analysis and solution of each problem.The first chapter is to put forward the problem,starting from the background of factoring business.The basic situation of factoring business is briefly introduced first,including the concept,nature and development history;then the basis for the code to recognize future claims is put forward;finally,three problems that need to be analyzed are drawn,namely: the standard of assignment is not clear,the assignment is effective The timing is uncertain and the transfer notification structure is not in place.The second chapter is aimed at the first problem,that is,the analysis and countermeasures of the unclear transfer standard.The content of the first section of this chapter is the research on the assignability of creditor’s rights in the future,including the horizontal research on comparative law,the vertical research on the viewpoints of various legislative stages and judicial adjudication practice in our country.The second section is to combine the provisions on assignment,clarify the criteria for the division of future claims,and divide them into basic future claims and simple future claims.The third section explains in detail the conditions for the assignment of future claims,including both the access conditions for the parties to the assignment and the requirements of the claims themselves,that is,certainty and anticipation.The third chapter is the key chapter of the assignment of creditor’s rights in the future.It discusses the time when the assignment will take effect:Section 1 first elicits different opinions on the effective time(when the assignment occurs,when the creditor’s right actually occurs,when the parties agree,and when the notice is issued).upon arrival at the debtor),and conduct a comparative analysis and an analysis of academic views for each point of view.The second section puts forward the legal risks brought about by the uncertainty of the time when the assignment takes effect,including: multiple assignment risks,the assignor bankruptcy and execution risks,and the risks of being disposed of in many different ways.Incorporating a variety of divergent viewpoints and contrasts.The third section is to propose countermeasures based on the previous analysis results.The fourth chapter is about the structure of the assignment notice.Since the future creditor’s rights have become effective between the assigning parties,the next step is to notify the debtor so that the tripartite relationship can be linked.The first section of this chapter analyzes the effect of assignment notice from the inside and outside of the three parties,and then leads to the discussion on the composition of assignment notice in the second section,and proposes that the current assignment notice structure cannot meet the needs of future assignment of creditor’s rights.According to the legal risks analyzed above,the third section proposes to join the assignee from the subject level;in terms of time,it proposes to allow notification before the actual occurrence of the creditor’s rights;in terms of form,it proposes to integrate into the trend of the times and innovate various methods of notification.path.The overall discussion logic of this article is carried out according to the process of future creditor’s rights assignment in the factoring business.The source of the assignment,that is,the conditions of the creditor’s right itself,is clarified,followed by the time when the assignment takes effect between the two parties(the assignor and the assignee).The determination of the point,and finally the notification to the debtor,the entire assignment process can be effectively linked and based on practice.The article adopts the methods of comparative analysis,case analysis and literature research to give a brief overview of each issue,and then analyze the legal risks in combination with the comparative method and practical cases,and finally put forward targeted suggestions.On the whole,the knowledge points studied in this paper are only a drop in the bucket of the entire factoring business and future creditor’s rights structure,and there are still many areas that need to be deepened and improved.If the knowledge points studied can be useful in practice and academics.That’s what it’s worth. |
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