Research On The Legal Issues Of Future Accounts Receivable Transfer In Factoring

With the increasing degree of trade credit,factoring is favored because it can provide efficient and convenient financing services for small and medium-sized enterprises in the supply chain.On the one hand,factoring takes advantage of its professional advantages to conduct credit evaluation on debtors,manage receivables and provide payment guarantee;on the other hand,it provides financing services according to the needs of suppliers.To solve the capital needs of its production and operation.Due to the rapid development of factoring business in China,the number of cases related to factoring disputes is increasing,and the demand for factoring norms in practice is booming.Under this background,the new factoring contract in the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)is a famous contract,which reflects the importance of factoring business.Article 761 of the Civil Code clarifies the concept of factoring contract and stipulates that the object of factoring includes both existing and future accounts receivable.It acknowledges the transfer of "future accounts receivable" which has been disputed for a long time in the law,and responds to the actual demand that future accounts receivable is used as factoring in our factoring practice.However,the Civil Code only acknowledges the transferability of future receivables and solves the problem of whether future receivables can be used as factoring.The provisions are relatively general and no other regulations are added.Future accounts receivable is a marginal concept in the traditional theoretical system of civil law,and there are few relevant theoretical studies.However,future accounts receivable transfer is a more common financing means in the field of commercial affairs,and it can also become a part of assets securitization.Compared with the increasingly important position of accounts receivable in modern society in the future,the standard supply of the current system is slightly insufficient.By combing the current legislative status of future accounts receivable transfer in factoring,and combining with 181 judicial decisions that use future accounts receivable as factoring,the problems of future accounts receivable transfer in current factoring are summarized in the following aspects: First,in factoring,the transfer conditions of future accounts receivable are vague.Courts judge whether future accounts receivable are transferable from the perspective of "determinability" and "expectability",while "determinability" and "expectability" are abstract and difficult to judge.Second,in factoring,the transfer time of future accounts receivable is unclear,which is closely related to the interests of the factoring,and determines whether the future accounts receivable can be isolated from the bankruptcy property and have the effect of compulsory execution under the circumstance that the assignor is bankrupt and the property is forcibly executed.Third,the rules of future receivables transfer notice in factoring are not complete,which is mainly manifested as unclear time of transfer notice and unclear form of vouchers when the factoring sends the notice;Fourthly,there are disputes over the future transfer of accounts receivable without basic legal relations.Some courts think that accounts receivable cannot be regarded as the object of transfer and deny the validity of factoring contract.In the practice of factoring,future accounts receivable as factoring becomes more and more frequent.It is of great theoretical and practical significance to improve the relevant provisions of future accounts receivable transfer in factoring and to promote the coordination between legislation and practice.First of all,the assignment conditions of future receivables in factoring are clarified to provide guidance for court judgment,so as to reduce the difference between different courts in the recognition of future receivables transferable conditions and avoid the occurrence of inconsistent judgments.Secondly,clarify the transfer time of future accounts receivable,enhance the transaction expectation of the factoring,and promote the development of factoring business;Thirdly,improve the notification rules of future receivables transfer in factoring,and clarify the time and way for the factoring to send the transfer notice to the debtor.Finally,allow the future receivables transfer without basic legal relationship,respect the free trading will of both parties,and protect the trust interests of the factoring.