| Since the Ministry of Commerce launched the factoring pilot in Tianjin and Shanghai in 2012,China’s factoring industry has developed rapidly.As compared with the bank loan business,factoring highlights the characteristics of low threshold,low credit requirements,high financing quota,etc.,so it has been more widely accepted in commercial practice.However,as the size of the factoring industry grows larger,the number of disputes that arise is increasing.In the current judicial practice of factoring disputes in China,there is a large deviation in the understanding of factoring,which leads to similarly similar cases that ultimately present very different referee results.Through the analysis of the jurisprudence judgment documents of the higher people’s courts across the country from 2015 to 2017,this paper draws out several main problems in the current judicial practice of factoring disputes.This paper first introduces the basic situation of China’s factoring,the types and characteristics of factoring.Then,according to the past judicial cases,the problems in judicial practice are analyzed.Since less scholars use this method to study the factoring,this is also one of the innovations of this paper.Finally,based on the conclusions drawn by my own analysis,the author puts forward some rough views on some problems in the judicial practice of the factoring in combination with some scholars’ views on factoring.The main problems in the judicial practice of factoring disputes are:the cause of the case,the jurisdiction,the status of the litigant,the review of the basic contract,the effect of the transfer of creditor’s rights,and the notice of the transfer of creditor’s rights.Because in the past cases,the parties did not accept the appeal because of the court’s determination of these issues,accounting for a large proportion of the appeals.This is also because different courts have different understandings of these issues,but the Supreme Court has not issued corresponding documents to explain these issues in a unified way.In the absence of a unified scale as a reference,local courts can only make judgments based on their own understanding of factoring.Based on these questions,the author puts forward his own point of view.First,since the current civil case is not enough to accurately describe the nature of the factoring dispute,the case of "Factoring Contract Dispute" should be added.Second,the determination of jurisdiction in a factoring dispute shall be subject to the jurisdiction of the underlying contract.In the case of factoring litigation,the creditor must be prosecuted or the creditor must be added as a third party.Third,the factor should conduct a substantive examination of the underlying contract.When the factor enters its prudential obligation,the authenticity of the underlying contract does not affect the validity of the factoring contract.Fourth,the transfer of the receivables that are prohibited from being transferred shall not necessarily invalidate the factoring contract,and shall recognize the validity of future accounts receivable.Fifth,the notice of the transfer shall be made in writing and shall become effective upon arrival. |
