Research On Assignment Of Creditor’s Rights In Factoring Contracts

Under the legislative model of the separation of civil and commercial affairs in our country,the inclusion of factoring contracts in the Civil Code is an important step in the civilization of commercial norms,and it is also a concrete manifestation of the current Chinese civil law academic view of “integrating commercial norms into the Civil Code”in legislation.Assignment of creditor’s rights is the causal act in the factoring contract,it in factoring and the assignment of general creditor’s rights constitute a special and general relationship in the Civil Code system,therefore,if it has no special provisions can be the relevant provisions on the assignment of general creditor’s rights shall apply.The assignment of creditor’s rights in factoring contracts should be combined with the relevant provisions of the general,analyze its particularity in the composition of legal relationship,the scope of objects,the defensible mode of publication rules and legal effects,then it discusses the feasibility of raising some special provisions on assignment of creditor’s rights in the chapter of factoring contracts to general rules.A factoring contract is a mixed contract consisting of the assignment of creditor’s rights,loan,entrustment,guarantee and other elements,so the judgment of its nature should be distinguished,the factoring contract without recourse is clearly characterized as the assignment of creditor’s rights,the transferred creditor’s rights do not guarantee the realization of the main creditor’s rights,and the factoring party shall bear the risk of bad debts,but the nature of the creditor’s rights assignment in the factoring contract with recourse shall be recognized as the assignment guarantee,and the transferred creditor’s rights guarantee the realization of the financing loan.The factor has the rights to request the creditor for the return of financing principal and interest and the repurchase of accounts receivable.The object of assignment of creditor’s rights in the factoring contract is accounts receivable,which is a restriction on the object of assignment of general creditor’s rights,but for the non-transferable accounts receivable,fictitious accounts receivable,bills of accounts receivable,the accounts receivable to be and collective accounts receivable are not yet clear the assignability in the general assignment of claims,but the factoring contract chapter of the Civil Code has already recognized the above claims’ assignability(except the bill claims).It constitutes the expansion of the scope of factoring of the claims of general accounts receivable,and the accounts receivable with the characteristics of bills should also be entitled to factoring,because the form of bills and accounts receivable coexist,and the debt of the bill can be performed first,and the recourse of the bill can provide protection for the creditor’s rights of the factor.Article 768 of the Civil Code establishes the multiple factoring defensible mode of publication rules,that is,registration priority,notice priority,and the registration prior to the notice.The subjective state of the factor will not affect its ranking,because the confrontational relationship between multiple factors is external,and the goodwill of the factor is only required when confronting the internal.The obligation to notify the debtor shall apply the general provisions of Article 546,and the reasonableness of the notification by the assignee shall be recognized to ensure that the debtor is notified in a timely manner.Article 768 can be applied by analogy to the rights competition between the factor and the pledgee of accounts receivable,because both of them are of a guarantee nature,but the seizure creditor,and bankruptcy creditor of the account receivable assignee shall be classified as a bona fide third party that cannot be confronted without registration,an unregistered assignment of creditor’s rights does not have the appearance to make the third party trust.In order to ensure the publicity and credibility of the assignment of general monetary creditor’s rights,and to unify the defensible mode of publication rules,to avoid the conflict of publicity systems,the provision of Article 768 should be applied.Due to the assignment of the creditor’s rights in the factoring contract,the rights and obligations of the relevant subjects have changed,and its legal effects include that the debtor obtains the right of defense and set-off against the factoring party based on the identity of the creditor’s rights,and the factor’s recourse and accounts receivable payment request right as well as payment of claims under different circumstances.Regarding the question which is the most controversial in the academic circle of whether the factor can claim rights to both the creditor and the debtor at the same time,according to the interpretation of Article 766 of the Civil Code combined with the factoring with recourse which nature is assignment and guarantee,the factor can simultaneously claim but it needs to be obliged to liquidate,because the granting of dual claims to the factor still only produces one legal effect,but it is more conducive to the factor to get paid.