A Study On Several Issues Of Assignment Of Receivables

The system of assignment of creditor's rights is a kind of the system of property circulation which adjusts to the development of social economy that demands the creditor's rights to be circulated as properties so as to increase their economic value. Although the system of assignment of creditor's rights is almost accepted in legislation in almost every country nowadays, it actually underwent a long time of development in history. In substance, the assignment of creditor's rights is a specific way to usufruct after the creditor's rights being materialized. The usufruct of monetary creditor's rights is the most outstanding one in this area. Account receivable is just a kind of monetary creditor's rights, and the assignment of receivables is a kind of the assignment of creditor's rights, thus, the rules of the assignment of creditor's rights also apply to the assignment of receivables in every country.The theoretic and practical issues relate to the assignment of receivables are too comprehensive to be covered entirely, because of limited space of publication, this thesis only deals with the most important topics and tries to explore deeply these topics one by one. All these topics selected are theoretically controversial in a way, extensively applicable in practice, and cover the aspects of substantive law and conflict of laws with respect to the assignment of receivables. This thesis is divided into six chapters. Chapter One,"Introduction", defines the meanings of account receivable and the assignment of receivables, limits the object and scope of the research in this thesis. It also analyses the origin and social functions of the assignment of receivables to reveal the practical value of the assignment of receivables. Moreover, this chapter presents the existing system of assignment of receivables in main countries of Civil Law System and Commom Law System and describes the contributions achieved by the related international organizations in this area. Thus, this chapter draws the outline of the system of assignment of receivables in the world nowadays, setting the background for the following chapters.Chapter Two exclusively discusses the issue of the assignment of future receivables. At first, this chapter explains the definition and classification of the assignment of future receivables and takes the narrow sense of future receivables as the object of research in this thesis from the pragmatism's perspective, namely, the future receivables which the possibility of the receivable's growth and the certainty ofthe receivable's content are up to quite certain extent, even though the underlying contractual relationship is still not existing at the time of assignment. Secondly, by applying the theory of expectant right and the examples in reality, this chapter explains the theoretically difficult points of the assignability of future receivables and analyses two significant practical issues– the time when the rights of future receivables are transferred and the enforcement of the assignment of future receivables.Chapter Three discusses the priority of the assignment of receivables. Firstly, it analyses the reasons why the priority arises and briefly introduces the priority rules in U.K, U.S.A., Germany and the Convention on the Assignment of Receivables in International Trade. After reviewing the basic contents and historical developments of the priority rules in U.K, U.S.A. and Germany which respectively represent three typical types of the priority rules in history, this chapter compares these three types of priority rules, and points out that the priority rules based on registration in U.S.A. have more advantages and will become the mainstream of the priority rules.Chapter Four explores the contractual limitations on the assignment of receivables. Firstly, this chapter analyses deeply the various causes of prohibitions in practice and classifies the types of non-assignable clauses and their corresponding legal interpretations. Secondly, this chapter briefly introduces the legislations of non-assignable clauses in some countries and the attitudes assumed by the related international conventions towards the contractual limitations on the assignment of receivables. Finally, this chapter mainly discusses the effectiveness of the assignment which violates the non-assignable clauses in the original contract and the responsibilities that the assignor and assignee should take because of the violation. Considering the creative accomplishments achievedd by the Convention on the Assignment of Receivables in International Trade with respect to the conflict of laws, Chapter Five centers on the Convention on the Assignment of Receivables in International Trade, and exclusively deals with the issue of conflict-of-laws under the assignment of receivables. After the in-depth exploration on the conditions, particularities and historical developments of the conflict-of-laws under the assignment of receivables, this chapter comprehensively discusses the choice of law concerning the priority, the contractual aspects of assignor and assignee relations, the proprietary aspects of assignments, the formal validity of contracts of assignment, thecharacterization of assignments as sale or security and the relationship between the assignee and the debtor.Chapter Six–"The System of the Assignment of Receivables in China"– adequately explains the significance of the assignment of receivables in China, and outlines the legal framework of the assignment of receivables in China nowadays. Meanwhile, this chapter sets out a series of suggestions aimed to improve the system of the assignment of receivables in China after analyzing the shortcomings of the existing system.