Study On Legal System Of Factoring

According to the latest draft legislation of the civil code,the independent chapter of factoring contract is added as a typical contract in China.A total of six items were added in the 552 articles:For the first time,it gives the official definition of factoring contract at the legal level and clearly indicates that the scope of transferred receivables includes claims that have occurred and will occur in the future;The second paragraph provides that the creditor and debtor fictitious accounts receivable situation;Paragraph 3 specifies the right of the factoring party to give notice of assignment of claims to the debtor;Paragraph 4 provides for recourse factoring;Paragraph 5 provides for non-recourse factoring;the sixth paragraph stipulates the order of indemnity of the factoring in the case of multiple assignment of accounts receivable.It should be said that the legislation positively responds to the long-standing disputes between the theoretical circle and the practical circle.But for one of the receivables in the transfer of the word "transfer" understanding of intriguing,whether the transfer is the civil law in the assignment of the full assignment of the meaning,the factoring becomes a new creditor when the creditor's right is transfer.Therefore,the basic theory of assignment of creditor's rights cannot explain all factoring contracts?Article is vague about the definition of future claims.Therefore,this paper compares and uses the definition of future claims for factoring in countries such as the UK and the US for reference.It is considered that the future claims that can be classified as factoring should break through the traditional basic legal relationship,but fail to take effect due to reasons such as the unexpired term and conditions,etc.,and there are two types of "pure future claims" that have not been signed in the contract.As long as there is the possibility of creditor's rights,the value of its credit assets should be recognized.Furthermore,article provides that fictitious accounts receivable cannot be used against the factoring unless the factoring knows that the description of "the factoring knows" is not specific enough.In the future,the judicial interpretation may determine the goodwill of the factoring from five aspects:whether the factoring examines the contract signing,performance,the transaction background of the underlying contract,issues the transfer notice and is confirmed by the signature of the debtor,and inquisition the status of receivables ownership on the chattel financing platform.Finally,the contract part adopts the most practical factoring classification of recourse and non-recourse for factoring contracts,but does not define the realization conditions or the agreed conditions of recourse.This paper holds that the situation of recourse may be autonomous according to the will of the contracting parties,but it must include the situation of recourse in which the debtor is unable or refuses to repay.