Research On The Legal Basis Of The Validity Of Factoring Contract Under Fictitious Accounts Receivable

In order to regulate the fictitious issue of receivables,Article 763 of the Civil Code stipulates that if the creditor and debtor of receivables make up the fictitious receivables as the subject of transfer and enter into a factoring contract with the factoring party,the debtor of receivables shall not oppose the factoring party on the grounds that the receivables do not exist,except when the factoring party knows the fictitious accounts.As for the legal basis for the validity of factoring contract under the fictitious accounts receivable in this article,after extensive discussion and analysis,four main viewpoints are mainly formed in the academic circles and judicial practice,such as the theory of protection of good faith to make up for the lack of target,the theory of collusion and hypocrisy without confrontation,the theory of right appearance liability,and the theory of generalized liability.Different opinions on the legal basis of the validity of the factoring contract in Article 763 of the Civil Code lead to different interpretations of this provision and specific standards for judicial application.It is necessary to seek a reasonable legal basis for the validity of the factoring contract under such circumstances for the interpretation and application of Article 763 of the Civil Code,as well as to guarantee the smooth development of factoring business and the smooth circulation of creditor’s rights.The first chapter of this paper analyzes the reasonableness of the judgment standard for the protection of good faith so that the factoring contract is not invalid due to the lack of the subject matter,but the modern contract law is constructed with the paradigm of the promissory contract,which neither requires a certain form nor requires the delivery of the subject matter and is a kind of agreement to be performed.And the elements of contract formation and validity stipulated in China’s civil code do not include the possibility of the subject matter,so the judgment standard is unreasonable.The first chapter of this paper analyzes the rationality of the protection of good faith to make up for the lack of subject matter.The protection of good faith factoring makes the factoring contract not invalid due to the lack of subject matter,which serves as the legal basis for the validity of the factoring contract in the case of fictitious accounts receivable.Because the modern contract law is constructed with the form of nose-form contract,it does not need a certain form and does not require the delivery of the subject matter.It is a kind of agreement to be performed.Moreover,the contract establishment and effective requirements of the civil code do not include the possibility of subject matter,so the lack of accounts receivable does not necessarily make the factoring contract invalid.Moreover,the expression of protecting the bona fide factoring party is too broad,so the legal basis for the validity of the factoring contract in the case of fictitious accounts receivable lacks rationality.The second chapter of this paper analyzes the theory that collusion hypocrisy shall not be opposed,that is,the theory that "collusion hypocrisy means no confrontation against a bona fide third party" is the legal basis for the validity of the factoring contract in the case of fictitious accounts receivable.Since conspiracy hypocrisy saying may not fight against third party in good faith is not the consensus in civil school,from the actual analysis of our country civil system,civil law should not summarize and stipulate conspiracy hypocrisy saying may not fight against third party in good faith.So the view also lacks rationality.The third chapter of this paper analyzes the theory of appearance liability of right,that is,the view that the debtor bears the appearance liability of creditor’s right as the legal basis for the validity of the factoring contract in the case of fictitious accounts receivable.However,it cannot solve the contradiction between creditor’s rights not having the appearance representation of publicity and the objective demand of protecting the smooth and stable transaction of creditor’s rights,so this view is also lack of rationality.Due to a fourth view of generalized responsibility said did not explicitly points out that the fictitious accounts receivable factoring contract effectiveness under specific legal basis,but points out that the debtor for fictional accounts receivable,thereby causing loss to the factoring person and to be liable to the factoring,which is unfit for this kind of case factoring legal basis for the validity of a contract,so this article is no longer for a concrete analysis of this kind of view.The fourth chapter of this article based on creditor’s rights does not have the appearance representation of public,and the protection of the smooth and stability of creditor’s rights trading is the contradiction of objective demand,referring to the solution of Japanese civil law and German civil law,combined with the actual legal system of our country,It is considered that the effective legal basis of factoring contract in Article 763 of the Civil Code should be the active trust protection of a bona fide third party with the appearance of reasonable trust intention under the assignment of creditor’s rights.However,The scope of meaning,expression and appearance in this standard is not equivalent to the situation of Article 146(1)of the Civil Code,nor is it completely equivalent to the collusion and hypocrisy shall not oppose the application of a bona fide third party in the assignment of claims.