Research On The Transfer Of Accounts Receivable In Recourse Factoring

Factoring helps enterprises revitalize accounts receivable financing and has become an important means of financing for small and medium-sized enterprises.China’s factoring industry started late,but it has developed rapidly in recent years.Behind the prosperity and development,there have been a large number of factoring contract disputes,which have brought great challenges to the judicial practice and the development of factoring industry,which need to be regulated by legislation.The civil code has realized the popularity of factoring contract,made China’s factoring contract have a clear connotation,pointed out the direction for judicial judgment,and realized the function of legal division and dispute prevention.There are only nine articles in the factoring contract chapter of the civil code.Although the factoring contract can also apply the general provisions of the assignment of creditor’s rights,compared with the assignment of creditor’s rights,the factoring contract has its own particularity,and many of the main disputes of factoring can not be solved by the general rules of the assignment of creditor’s rights.The relatively simple and rough provisions in the chapter of factoring contract of the civil code make some controversial factoring issues still have doubts in the application of law,such as the legal nature of recourse factoring,the scope of transferable accounts receivable,the impact of fictitious accounts receivable on the effectiveness of factoring contract,the impact of prohibition of special assignment on the effectiveness of factoring contract and the sequence of the exercise of recourse,The relevant provisions of the factoring contract need to be explained in detail.Through the exploration and summary of the theories of theoretical circles and the judgment views of judicial practice circles,this thesis makes a systematic research and reflection,and explains the relevant legal rules of accounts receivable transfer in recourse factoring.The first chapter focuses on the definition of factoring contract in article 761 of the civil code and the provisions of factoring contract with recourse in article 766 of the civil code,analyzes the concept of factoring contract with recourse,and focuses on the core controversial issue in the field of factoring,the legal nature of factoring accounts receivable with recourse.Through the introduction and analysis of five controversial theoretical viewpoints in the theory,combined with the evaluation of judicial practice,this thesis obtains the viewpoint of this thesis "the theory of transfer guarantee",and believes that this theory is also adopted in the civil code.Finally,it expounds the consistency between the theory of transfer guarantee and the practice of recourse factoring.The second chapter makes a specific study on the scope of transferable accounts receivable,analyzes the disputes existing in the connotation and extension of accounts receivable in the theoretical circle,compares the differences between accounts receivable and general creditor’s rights,discusses the nature of studies whether bill creditor’s rights can be classified as factoring.Explore the theoretical basis of the eligibility of future accounts receivable as the subject matter of factoring contract,and further suggest a reasonable explanation of the restrictions on the entry and exit of existing accounts receivable.The third chapter studies the accounts receivable and anti transfer in recourse factoring,in order to analyze the rules of the exercise of the rights of the factoring person.Firstly,it explains the connection and difference between anti transfer and recourse,then analyzes the legal nature of the more controversial recourse in practice,then discusses the exercise rules of recourse,and clarifies the relationship between recourse and payment claim.The fourth chapter studies the legal effect of the transfer of defective accounts receivable.Firstly,it discusses the prominent problem in the factoring industry,that is,false accounts receivable.Its core is the impact on the effectiveness of the factoring contract in the case of false accounts receivable.On the one hand,it lists the original judgment differences.On the other hand,it summarizes the legal normative effect of article 763 of the civil code,and comes to the conclusion that the fictitious accounts receivable will not affect the effectiveness of the factoring contract unless the factoring person knows it.In the case of prohibiting the concession of creditor’s rights,according to the provisions of the civil code on the assignment of general creditor’s rights,this thesis studies the impact of the prohibition of concession of creditor’s rights on the effectiveness of factoring contracts,and applies the general provisions of the contract series of the civil code to factoring contracts.