Research On The Legal Nature Of Recourse Factoring

At present,there are three main views on the nature of recourse factoring in judicial decisions: the theory of assignment of creditor’s rights,the theory of transferring guarantee and the theory of indirect payment.The different identification of the nature of factoring with recourse will affect the order of the subject of settlement responsibility and the distribution of responsibility of each subject in the judgment,thus affecting the substantive rights and obligations of the parties.Chapter 16 of the contract part of The civil code establishes the status of factoring contract as a named contract with nine articles.Related judicial interpretation is the first mock exam to define factoring,ownership reservation institution and financial lease as atypical guarantee.However,atypical guarantee is a fuzzy definition.This definition is in conflict with factoring practice,and it can not cover the complicated types of recourse factoring in practice.In addition,the legal relationship of factoring contracts is complicated under the autonomy of will.Factoring legal relationship and factoring contract object itself are complex.The parties’ free agreement on the content of recourse will also affect the legal nature of recourse factoring in a case.For the above reasons,the legal nature of recourse factoring is still uncertain.Under the background of The civil code,it is impossible to completely overturn the current provisions of The civil code and its relevant judicial interpretation which definite factoring as atypical guarantee.Therefore,only on the basis of the current legal norms and on the premise of respecting the party’s autonomy of will,can the nature of recourse factoring be recognized as indirect payment,transferring guarantee and assignment of creditor’s rights.Meanwhile,under the diversified identification of the nature of recourse factoring,this paper tries to clarify the concepts of "atypical guarantee" and recourse factoring,and make it clear that only the recourse factoring with the nature of transferring guarantee has the nature of atypical guarantee in order to revise and improve the current rules to better connect them with industry norms.