Research On Legal Issue Of Factoring Contract

In recent years,the scale of China’s factoring business has grown rapidly,and it has become the largest factoring market in the world.With the promulgation of the“Civil Code of the People’s Republic of China”,the factoring contract is stipulated in the form of special chapter in Chapter 16 of Contract,and the basic mechanism for dispute settlement of factoring contract is formulated,filling the legislative gap of factoring contract in China for a long time.However,there are still many disputes in the factoring contract: on the one hand,new rules of creditor’s rights are added,but there are different from the general provisions of creditor’s rights in China,which needs to be explained.On the other hand,only the general provisions of the factoring contract are not enough to solve the problems in the practice,such as the ambiguous standard of accounts receivable,the "knowing" standard is not unified,and the unspecified rules of factoring notice.Based on the reality of factoring contract disputes in China,this paper studies the basic theory and legislative situation of factoring contract,analyzes the main problems in the factoring contract,sorts out the views of judicial judgment,and puts forward the solution measures,so as to make the rules of dispute settlement of factoring contract more unified and operable.Except for the conclusion,this paper is divided into five parts:The first part: Research on the basic theory of factoring contract.From the development process of factoring contract,analyze the due meaning of modern factoring contract,and clarify the legal relationship between the parties to the factoring contract and the basic transaction contract.To summarize the characteristics of factoring contract,compare and analyze the factoring contract and contracts of different nature such as the pledge,creditor’s rights and,that the factoring contract are obviously different from the above contract,not enough to cover the legal characteristics of factoring contract,factoring contract is essentially a mixed contract.The second part: The status quo of legislation and judicial application of factoring contracts in China.By analyzing the provisions of laws,regulations,rules and judicial interpretations,the legislative status of factoring contract is studied.By analyzing the judgment data of factoring contract cases and the application status of factoring contract in judicial judgment,we find the disputes existing in judicial practice.The third part: Problems existing in factoring contracts in China.Further analyze the problems existing in China’s factoring contract,such as the fuzzy transfer standard of accounts receivable,the inconsistent standard of the guarantor in the fictitious accounts receivable,and the insufficient specific notification rules of factoring people.The fourth part: Foreign regulations and implications on factoring contract.The regulations on factoring contracts of some countries in British and mainland law systems are studied respectively,and the transfer standards of accounts receivable,the notification rules of creditor’s rights transfer and the advanced experience in the construction of credit investigation and registration system related to factoring contracts conducive to the development of factoring contracts are absorbed into the construction of factoring contracts in China.The fifth part: Put forward the suggestions on perfecting the legal governance of factoring contract in China.First of all,it is clear that there will be the transfer standard of accounts receivable,and the relative certainty and reasonable expectation can only renew the factoring contract.Secondly,to refine the connotation of the guarantor knowing in the fictitious accounts receivable,knowing that including knowing or should know,and the factoring person has different audit obligations according to whether the debtor has issued a confirmation notice.Moreover,the paper puts forward the proposal to standardize the notice of accounts receivable transfer,unify the subject of the notice of creditor’s rights transfer,and ensures the specific content and form of the transfer notice of accounts receivable in the contract.Finally,put forward suggestions on the construction of relevant platforms such as credit investigation system and registration system,to strengthen the construction of factoring industry association...