The Effective Predicament And Overcoming Of Future Creditor’s Rights Factoring

Future creditor’s rights factoring,that is,the business of continuing factoring with future accounts receivable as the subject of creditor’s rights.Since the Ministry of Commerce launched the pilot work of factoring business in 2012,the volume of factoring business in my country has increased rapidly year by year,but at the same time,the effective dilemma that the effect of creditor’s rights factoring will not be recognized in the future has become more and more prominent.There has always been controversy in the theoretical circles of our country on whether future creditor’s rights factoring is effective,and the cases of future creditor’s rights factoring in the practical world have also presented different adjudication views.The main controversial views can be roughly divided into three categories: one is that they do not recognize the effectiveness of factoring business based on future accounts receivable,and believe that factoring contracts based on future accounts receivable should be invalid;The validity of the factoring business of accounts receivable,but it is believed that the future accounts receivable must meet relatively certain preconditions to make the factoring contract valid;the third is to approve the factoring business based on future accounts receivable.effective,and it is considered that the factoring business can be carried out based on future accounts receivable that do not meet the relatively certain conditions.Article 761 of the "Civil Code of the People’s Republic of China" clarifies that factoring business can be carried out based on accounts receivable,that is,it recognizes the validity of future creditor’s rights factoring,thereby resolving the dispute over the first point of view.In addition,because the Civil Code does not specify the effective requirements for future creditor’s rights factoring,the latter two disputes on whether future accounts receivable should be relatively certain are still pending.In practice,most judges hold the second view,but why? The future accounts receivable needs to be relatively certain,but two different ways of judging are given.One is to reason from the legal principle of assignment of creditor’s rights,and the other is to reason from the relevant provisions of the current law.However,from the analysis of the elements for the establishment of the factoring contract,it can be seen that whether the future accounts receivable is relatively certain is neither the establishment element nor the effective element of the factoring contract;The relative certainty of a clause is neither a prerequisite for the validity of its assignment,nor is it a requirement of existing law.Therefore,whether future creditor’s rights factoring is relatively certain cannot be regarded as a prerequisite for its validity,that is,the validity of future creditor’s rights factoring should be generally recognized.In addition,from the perspective of transaction security,on the one hand,the prudential review obligations and defects guarantee obligations among the parties to the factoring contract should have become the main basis for the responsibility of all parties,and the consideration of these obligations in current practice On the other hand,future accounts receivable is only one of the important elements in future creditor’s rights factoring,and the judgment of the validity of the factoring contract should also be considered from the perspective of the rights and obligations of the entire contract to see whether the transfer Corresponding risks,rather than focusing solely on the review of future receivables.Therefore,in terms of feasibility,the general recognition of the validity of future creditor’s rights factoring will not lead to the safety of factoring transactions not being guaranteed.Therefore,the effectiveness of future creditor’s rights factoring should be generally recognized.、...