Research On Nature Of Recourse Factoring Contract

As an emerging trade financing tool,factoring business has developed rapidly in China.It has been a troika of protection for China's trade claims in only 20 years,along with the letter of credit business and credit insurance.Although the high-speed development of factoring business in China has injected vitality into the market economy in a short period of time,it also faces problems such as lack of supervision,lack of legislation,and differences in referee opinions due to mismatches in various systems.The practice and development of factoring business have added difficulties.From 1996 to 2019,there were more than 10,000 dispute cases involving factoring contracts nationwide.In these cases,there were many differences in the judgment of the judgement regarding the legal nature of factoring contracts with recourse.The traditional view attributed the nature of factoring contracts to debt assignment contracts.This view was able to resolve related factoring disputes when the factoring business first appeared,but when the application of factoring with recourse has expanded,traditional claims The theory of concession seems to be inadequate,so it is necessary to rethink the nature of factoring with recourse.At present,there are three main views on the legal nature of factoring with recourse in judicial adjudication: the theory of conditional creditor 's rights concession contract,the theory of financial lending contract with concession guarantee,and the theory of indirect payment contract with guarantee debt performance.The judge's determination of the nature of the factoring contract with recourse is not only based on his own understanding,but also a reference to the theory of extraterritorial theory.However,international legislation and conventions regard factoring business as a whole and determine it as a creditor's right.In contrast,the rare doctrine's determination of the factoring nature of recourse rights does not meet its essential requirements,making it difficult to justify itself.Article 766 of the third review draft of the Civil Code stipulates that the factoring person has the right to choose the subject of liquidation in the factoring contract with recourse,but it is not enough to accurately locate the legal nature of the factoring contract with recourse.In a factoring contract with recourse,both the creditor and the debtor are liable for the factoring,and the liability form is joint and several liability.Therefore,the provisions of Article 766 of the third review draft of the Civil Code on the choice of factoring factor still failed to fully verify the legal nature of the factoring contract with recourse.The transfer of accounts receivable is the core of the factoring contract,which means that the factoring contract with recourse must include a contract for the transfer of accounts receivable based on the pre-existing basic contract.The creditor uses the transfer of accounts receivable to pay off the loan to the factor.Therefore,the debtor 's primary responsibility for the factoring should be the logical result of the nature of the factoring contract with recourse.While affirming that the factoring right of the creditor to the creditor and the right of repayment of the debtor can coexist,it should also be clear on the specific responsibility of the creditor and the debtor's repayment order and share requirements.In this context,this article advocates the use of indirect payment theory to explain the legal nature of factoring with recourse.It is based on the argument between the factoring with recourse and the factoring without recourse.The basic role played by the theory of assignment in factoring contracts is to profoundly deconstruct the difference between the indirect payment theory and other theories,and to clarify that the indirect payment is applicable to the legality and rationality of the factoring of factoring with recourse,that is,feasibility,Provide a solid and powerful theoretical basis for the future legislative improvement of the factoring system.