Research On Legal Issues Of Factoring Contracts From The Perspective Of Civil Code

Commercial factoring has developed rapidly since it entered my country in the1980 s,and my country has now become the country with the largest amount of factoring business.However,before the "Civil Code" was promulgated in my country,there was no special law on factoring contracts.On the one hand,the factoring market continues to expand,and factoring contract disputes are also increasing year by year.In order to solve this problem,the central government has stipulated special chapters on factoring contracts in the Civil Code,which provides a sound for my country ’ s commercial factoring legal system.The basic legal support has also responded to the questions that have been in judicial practice.However,due to the relatively basic and principled provisions of the "Civil Code" on factoring contracts,some of the problems in judicial practice have not received a positive response.Therefore,it is necessary to further explore the problems in factoring contracts.First of all,regarding the definition of the legal relationship of factoring contracts,judicial practice has evolved from the pledge of creditor’s rights to the transfer of guarantees,the transfer of creditor’s rights,and indirect payment relationships.After analysis,according to whether there is a right of recourse,the factoring contract relationship can be divided into a special assignment relationship of creditor’s rights and an ordinary creditor’s rights assignment relationship.Secondly,because the "Civil Code" only stipulates the scope of accounts receivable,it also clarifies that future accounts receivable can be used as the subject of factoring,but it does not impose clearer restrictions on the scope of accounts receivable.Judicial practice In the cases from the past to the present,there is still the question of whether restrictions should be imposed and the restriction standards are not uniform.The legislation does not clearly stipulate this issue,but it is necessary to limit the scope of accounts receivable in the factoring contract.Accounts receivable arising from personal family life should be excluded,and it should be specified that future accounts receivable must meet the requirements.Only clarity and predictability can be used for factoring.Third,with regard to the transfer of account receivables under factoring contracts,the "Civil Code" has clearly stipulated that fictitious accounts receivable shall not confront bona fide third parties.As for how well-intentioned third parties judge,there are disagreements.Some people think that factorers must fulfill their prudential obligations before they can be exempted.Others think that factorers can only be exempted from liability if they “don’t know or know”,but the Civil Code also excludes the “ should know ” situation.It seems that there is a suspicion of overprotecting the factoring person.The author believes that the law should be used to clearly ensure the factoring person’s review obligation.The "Civil Code" also makes it clear that the agreement to prohibit the assignment of creditor’s rights shall not be against a third party.This provision protects the assignee of the creditor’s rights to be able to stably receive the creditor’s rights,but it may aggravate the debtor’s obligations.Therefore,the debtor should be protected to a certain extent;the "Civil Code" stipulates that the notification of the transfer of accounts receivable in the factoring contract breaks through the creditor’s rights.The general provisions of transfer,from the point of view of its purpose,are to give the factoring more initiative,but there are some irregularities.The regulation does not exclude the creditor as the subject of notification,creating room for future optimization of this regulation.In addition,the way in which the factor claims rights is also an issue that needs to be resolved.According to the provisions of the Civil Code,it seems that the factoring party can only choose the right relief from the three situations of requiring the debtor to repay the accounts receivable,requiring the creditor to return the principal and interest of the financing,and requiring the creditor to repurchase the accounts receivable.Choose one.However,the "Judicial Interpretation of the Security System" recognizes that the factoring party will jointly sue the creditors and debtors of the accounts receivable,but it leaves the courts with greater discretion.After analysis,the key for the court to decide whether to consolidate the trial is the litigation claim claimed by the factoring party.Finally,the jurisdiction problem of factoring contracts also exists.On the one hand,the relationship between the factoring contract and the basic contract in the factoring contract can be unified by the court in the event of a dispute,which can save judicial resources and improve efficiency,but it may harm the debtor’s litigation interests..After balancing,choosing a court with jurisdiction over the basic contract to combine the two sets of relations is the best solution.