Research On The Assignment Of Future Claims With Recourse Factoring

In recent years,China’s factoring business has developed rapidly,among which recourse factoring has become the mainstream business model in China due to its significant improvement in transaction security.Allowing the transfer of future debts in factoring has played a key role in improving financing efficiency,enhancing enterprise capital liquidity,and promoting the rapid development of small and medium-sized enterprises.The Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),which was officially implemented in 2021,clarifies the content of recourse factoring through legislative means and recognizes the transferability of future claims in recourse factoring.However,through the analysis of cases that occurred after the implementation of the Civil Code,it is found that there are still aspects that can be refined and improved in relevant laws,regulations,and theoretical content.This article intends to summarize the problems that arise in practice through the inspection and analysis of existing judicial practices in China.Combining with discussions on the general theory of future debt transfer in China’s recourse factoring,an examination of the legislative status,and an examination of relevant legislation and practical experience abroad,it will study the issue of future debt transfer in China’s recourse factoring,and attempt to propose improvement suggestions.This article mainly includes four parts in addition to the introduction.The first part analyzes the judicial status of future debt assignment in China’s recourse factoring.Firstly,there are four different perspectives on the judgment criteria for transfer:reasonable expectation,as well as certainty,relative certainty,specificity,and predictability,which have resulted in different judgment results.The author analyzed the results based on specific relevant cases and judgments.Secondly,there are different criteria for determining the time nodes of future debt transfer in recourse factoring.Based on corresponding case studies,there are generally three views: when the debtor of accounts receivable receives the notice,when the parties agree,and when the transfer is registered.Finally,the corresponding authenticity determination standards are different,and the original authenticity judgment standard of "named factoring,actually borrowing" is no longer fully applicable to future claims with certain uncertainty.After examining the current judicial situation,the reasons for the emergence of judicial issues were further explored,which generally include three reasons: the urgent need to define the nature of future claims,the controversial understanding of the nature of factoring with recourse,and unclear legislative and judicial standards.The second part,in response to the analysis of the reasons for the above judicial issues,analyzes the relevant theories of the transfer of future claims in recourse factoring,clarifies that future claims refer to claims that have not yet arisen but may arise in the future,which can be defined into three categories.At the same time,it discusses the nature of recourse factoring,the nature of recourse and its exercise order.Finally,it conducts a normative examination of the relevant provisions of the Civil Code.In the third part,relevant legislation and practice outside the region were examined in response to the issue.Regarding the corresponding standards for the transfer of future claims in recourse factoring,Germany believes that certainty is necessary when it arises,France determines it as receivables arising from existing and future contracts,the United States requires payment of consideration,Japan has established four specific recognition standards in practice,and international conventions provide the idea of "distinguishability",At the same time,it was observed that most countries define recourse factoring as a special assignment of claims,and the controversy over the specific scope of future claims lies in whether there is a fundamental relationship.After the review,the author summarized the reference points,including appropriately relaxing the requirements for the certainty of future claims,adopting Functionalism to build the system,and reasonably defining the specific scope of future claims.The fourth part attempts to propose corresponding suggestions for the improvement of future debt transfer in China’s recourse factoring.Firstly,the author believes that the transfer standard can be clearly defined as "recognizable" and the subject and transaction stability should be recognized.At the same time,commercial habits in practice should be respected.Secondly,regarding the time of transfer,the author believes that the retrospective force theory can be used.After future debt is converted into existing debt,When the time point at which the factoring party actually obtained the debt is confirmed as the signing of the contract,once again,regarding the authenticity determination criteria,the original "named factoring is actually a loan" judgment standard for existing debt factoring can be improved based on the specific situation of future debt,and the criteria can be determined as the subject of the transaction relationship,time span,and relative stability of the transaction can be recognized.At the same time,one-time or multiple notifications to the debtor can be allowed.Finally,The author believes that appropriate restrictions should be placed on the transfer of future claims with recourse factoring,clarifying that the contract content should not be changed after the transfer.The future claims themselves have transferability and follow due process.At the same time,the overall transfer of future claims should be restricted to ensure transaction safety,and external publicity restrictions should be added.