Research On The Legal Issues Of Non-recourse Factoring Business Of Commercial Banks

In 2001, Nanjing Ericsson event indicates non-recourse factoring business officially entry into our country. In 2012, factoring volume has reached to 2.83 trillion yuan, but the volume of recourse factoring accounts for over 70% of the total factoring volume. That deviates from the development path and trend of factoring business all over the world. One of the most important reason why non-recourse factoring business develops so slowly in our country is that China cannot regulate the legal problems in the practical operation effectively in the current. Given this, through the theoretical analysis of non-recourse factoring, this paper determines its legal nature. Based on the non-recourse factoring business development status, the paper summarizes the legal problems and legal risks in the practical operation of commercial banks non-recourse factoring business in our country. Combined with the advanced experience of developed countries, the paper comes up with relative countermeasures from a legal point of view in order to promote non-recourse factoring business to develop healthy, persistently, rapidly in China. In addition to the introduction, the paper divided into five parts.The first part is present of the problem. Through the introduction of two real events, it shows that operating procedures is in chaos when commercial banks engage in non-recourse factoring business and leads to the topic of the paper that how to guide and regulate the practical operation of commercial banks non-recourse factoring business from a legal point of view.The second part introduces the basic operation mode of non-recourse factoring business, determines its legal nature and the legal relationship between the parties. Based on the review of existing views, it demonstrates that non-recourse factoring business is an integrated financial service centering on assignment of claims.The third part introduces the development status and the existing legal problems of non-recourse factoring business in our country. It sums up the legal gaps of the law about the transfer of accounts receivable and analyzes the legal problems and legal risk in the process of practical operation of non-recourse factoring business, including the legality, effectiveness, multiple transfers and other legal issues of the transfer of accounts receivable, the legal risks on defective performance of the basic contract, and the credit risk.The fourth part introduces the factoring legislative status of USA and Japan, in which non-recourse factoring business is developed. The comparative analysis of the development status of non-recourse factoring business in our country and the other two countries, which could take as a reference for China’s relevant factoring legislation, including the registration system of assignment of claims in American ‘Uniform Commercial Code’ and the priority principle of assignment of claims notice in Japanese law.The last part is the focal point of this paper, putting forward the idea of perfecting the system of non-recourse factoring business in China. Through strengthening the scrutiny of credit and notification validation, establishing the assurance mechanism to the seller, choosing suitable factors to cooperate, and working with insurance company, commercial banks improve legal risk control system by themselves. By means of taking relevant factoring legislation in developed countries as a reference, it improves relevant non-recourse factoring laws and regulations in our country to reduce legal disputes, including making it sure that the effectiveness of future assignment of claims, the validity of anti-assignment clause, the form of assignment of claims notice, and the registration system of assignment of claims. It promotes non-recourse factoring business to develop healthy by improving the regulatory regime of commercial banks factoring business and enterprise credit management system.