Research On The Protection Of The Rights And Interests Of The Third Party In Commercial Factoring

The third party is naturally involved in the process of commercial factoring,whose behavior will directly affect whether the business can be carried out normally.With the rights and responsibilities of the third party not clear,once disputes occurred,whether the rights and interests of all participants can be safeguarded remained uncertain.If the risk of a transaction can not be predicted,its business can not be carried out normally.This paper attempts to analyze the rights and interests of the third party in commercial factoring from the perspective of assignment of creditor’s rights,and to discuss several common situation of conflict of rights on the basis of distinguishing the third party into special third party(debtor)and general third party.The issues are as follows,what rights and obligations the debtor has after the assignment ofreceivables and how to exercise them,how to determine the priority of multiple assignees when they request performance from the debtor at the time of repeated assignment,how to solve the conflict of rights between other obligees and assignees when there is a security right in accounts receivable,how to explain the covert factoring business in practice,how to understand the nature of "confirmation letter of accounts receivable",whether the emerging "X-letter" model can be regarded as a derivation of commercial factoring,and how to understand the effectiveness of the prohibition of alienation clause.The author believes that it is the theoretical basis for solving the above problems by taking the transfer of accounts receivable as a quasi-real right act.Accordingly,the "transfer notice" stipulated in Article 80 of the Contract Law should be interpreted as a defensive important document rather than an effective important document.Whether the notice is given or not does not affect the fact that the factoring agent has been assigned accounts receivable and become the real obligee.However,if factoring agent wants to achieve a complete "absolute right",it needs to improve the public confrontation system and establish priority rules.The design of such rules should consider distinguishing third parties,applying notice publicity to special third parties and registration publicity to general third parties.In view of the current situation that the relevant laws of accounts receivable are inadequate,it is necessary to regulate the relevant laws and regulations on the transfer and pledge of accounts receivable after merging them,so as to reduce the occurrence,caused by human factors,that different laws apply for one same circumstance.