On The Systematization Of Pledge Of Accounts Receivable

The application of Article 445 of the Civil Code,Articles 61 and 66 of the Interpretation of the Security System of the Civil Code and the reference to the rule of priority subordination of assignees of accounts receivable in factoring contracts under Article 768 of the Civil Code together constitute the current normative system of pledge of accounts receivable.However,the construction of the relevant rules reflects a conflict between the formal and functional views of security.The Civil Code continues the establishment rules of the pledge of accounts receivable,and stipulates the pledge of accounts receivable in the section of the pledge of rights,and still follows the basic distinction of the types of real right of security under the formalistic guarantee concept.But in the construction of the relevant rules is clearly embodies the functional guarantee concept: article 445 of the Civil Code continue to adopt accounts receivable pledge since the registration,the registration as pledge effective and public requirements,ignoring the element of the validity of the pledge of receivables against the debtor,and it is contrary to the basic composition of the establishment of the pledge.Through the guarantee system interpretation of article 66 and the contract factoring rules,to confirm the homogeneity of accounts receivable with the accounts receivable pledge conflict the priority order rules.However,notice to the debtor is hardly sufficient for public notice to third parties.Article 61 of the Interpretation of the Security System of the Civil Code intends to regulate the rights and obligations of the parties in the case of a fictitious pledge of receivables,but the issues of whether this regulation constitutes legal fiction,the nature of the debtor’s liability in the case of a fictitious pledge of receivables and the effectiveness of the debtor’s confirmation of the authenticity of the receivables are still unclear.Therefore,this paper intends to further explain the establishment and publicity system of the pledge of receivables from the perspective of the formal security viewpoint and the analysis of the factoring contract rules based on the current legal regulation system of the pledge of receivables in the Civil Code,in an attempt to resolve the conflicts between the relevant legal rules and further clarify the rights and obligations between the parties in the fictitious pledge of receivables financing,with a view to benefiting the application of the relevant rules and seeking the systematic effect of the Code.The first part of this paper focuses on the establishment of the current rules of formal guarantee.The current accounts receivable pledge registration system is actually based on the declaration registration system.Mortgage registration does not have credibility,and the representative opinions in the judicial judgment also hold the view that pledge registration and cannot replace the notice to the debtor.From the perspective of the formal view of guarantee,the pledge of accounts receivable is placed in the section of the Civil Code,and its establishment requirements should realize the basic distinction between pledge and mortgage.notifying the debtor of the fact of accounts receivable pledge can realize the effect of controlling the debtor’s repayment behavior,so as to realize the control and control of the pledge target.Therefore,the pledge of accounts receivable should be established by notice and public antagonism..In the case of many debtors of accounts receivable or the debtor is uncertain in the future receivables,the way of announcement or control of specific accounts can be adopted to achieve the effect of controlling accounts receivable claims.The second part discusses the rationality of the rule of right holder when accounts receivable are punished repeatedly.Factoring takes the transfer of accounts receivable as its core element,and the premise of this rule is to clarify its relationship with the traditional debt transfer rules.Under the guidance of the concept of functional guarantee,the legislators considered the factoring contract and the accounts receivable pledge guarantee.Article 768 of the Civil Code establishes the priority rules for rights holders in receivables financing guarantees by reference to the provisions of article 414 of the Civil Code on the priority rules for the priority of satisfaction of security rights.However,both the accounts receivable transfer notice and the pledge notice can only play the role of binding the debtor,do not have the publicity effect,and are easy to induce the legal risk of collusion between the parties,so it should not be used as the confirmation standard of the right priority rule.The priority subordination rule established by this article also applies to non-recourse factoring,and registration of publicity has absolute priority.The third part focuses on explaining the protection of the goodwill third party and the responsibility of the debtor in the fictitious accounts receivable pledge financing.Article 61 of the Interpretation of the Supreme People’s Court of the Application of the Relevant Guarantee System of the Civil Code divides the responsibilities of the pledgee and the debtor under different circumstances by whether the debtor means to confirm the authenticity of the receivables to the pledgee.Firstly,the confirmation of the authenticity of accounts receivable should be strictly interpreted in combination with the judgment rules in judicial practice,excluding the silence of the debtor and the confirmation of accounts receivable notice.Secondly,this article is the normative basis of the debtor’s liability but does not constitute the proposed establishment of the pledge,the real existence of accounts receivable is the basis for the effective establishment of the pledge,fictitious accounts receivable pledged,the pledge is not established because of the lack of basic core elements.A bona fide third party may assert liability for breach of contract or tort against the creditor and debtor of the receivables.The validity of the debtor’s acknowledgement of the authenticity of the receivable should be distinguished: after the debtor participates in the fictitious receivable or unilaterally falsely acknowledges the debt,it may no longer assert the defense that the receivable is not real or does not exist.However,if the receivables are genuine at the time of the pledge,the debtor’s confirmation of the genuineness of the receivables is not considered a disposition of its defenses and rights of set-off based on the underlying contract,unless it expressly waives.If the debtor acquires an active claim for a reason that occurs before the notice of pledge and expires before or at the same time as the receivable claim,it may claim set-off from the pledgee,and the set-off of an active claim arising from the same transaction as the receivable claim is not limited by the time of acquisition and expiration of the claim.