Research On The Judicial Application Of Factoring To The Authenticity Examination Of Basic Transaction

In recent years,the factoring industry in China has developed rapidly,and the number of factoring contract disputes has increased year by year,especially the disputes caused by the untruthful underlying transactions.In response to the legislative needs of the factoring industry,the Civil code has included factoring contracts as a typical contract,with a total of nine articles.However,there are still differences in the understanding of factoring contracts in the practical community.The core is to clarify the relationship between factoring contracts and underlying transactions,that is,how to view the relationship between the authenticity of underlying transactions and the independence of factoring contracts.In the individual case,the essence of the issue of the validity of factoring contracts lies in whether the factoring contracts are affected by the authenticity of the underlying transactions;Is it necessary for the factoring party to independently review the authenticity of the underlying transaction in addition to the non objection commitment during the conclusion of the factoring contract.Furthermore,the standard for determining the obligation of review is whether the factoring agent has the right to demand that the debtor assume the obligation of the factoring contract when the debtor argues that the underlying transaction is untrue due to fictitious accounts receivable.By analyzing the characteristics of factoring finance and judicial practice experience,it is proposed that factoring contracts are a tripartite legal relationship,and the judgment of the effectiveness of factoring contracts should not be constrained by the authenticity of the underlying transactions;However,the factoring agent should bear the independent review obligation of the authenticity of the underlying transaction,and the specific review obligation should adopt formal review standards.In order to unify judicial judgment standards and promote the development of the factoring industry.The first chapter of the main text takes three typical cases as the starting point to sort out the legal relationships and legal responsibilities of typical cases.Based on the facts of the case,clarify the focus of the dispute,namely the determination of contract validity and contract liability.Analyzing and comparing the judgment ideas of courts at all levels,it is found that there are different judgment bases for determining the effectiveness of factoring contracts under fictitious accounts receivable.One is based on the perspective of the legal relationship between the two parties,and the other is based on the civil law principles of collusion and false expression of intent;Propose whether the commitment of the underlying transaction debtor to the factoring agent can replace its review obligation;Propose the issue of the authenticity review criteria for the underlying transaction by the factoring agent.The second chapter of the main text is a legal analysis of determining the effectiveness of factoring contracts when the underlying transaction is not genuine.A factoring contract is a multi-party legal relationship formed by the factoring party and the underlying transaction subject.When determining its legal validity,it should not be restricted by the non-existent underlying transaction.From the analysis of the connotation and legal structure of factoring contracts,it is clarified that the core element of factoring contracts plus any even prime is a legal construction model,and that factoring contracts are a multi-party legal relationship.At the same time,based on the different subjects of false basic transactions,the factoring business of false and untrue basic transactions is divided into three types and explained.Clearly determining the basis for determining the effectiveness of factoring contracts,while denying the perspective of the legal relationship between the two parties.The determination of the effectiveness of a factoring contract should be based on the factoring contract itself,that is,the legal relationship of the factoring contract is independent of the legal relationship of the underlying transaction.The third chapter of the main text is a legal analysis on whether the debtor’s commitment can replace the factoring party’s obligation to review.Factoring parties should bear the obligation of independent review of the authenticity of underlying transactions,as there is no general provision in Chinese law for commercial appearance doctrine,so a declaration of commitment cannot be used as a right appearance.Moreover,even if the application of false representation is effective against third parties,it is still necessary to determine specifically whether the third party is in good faith.However,in the field of creditor’s rights,there is still a lack of criteria for judging the goodwill of third parties.Secondly,in response to this,financial regulatory authorities have issued separate documents that clearly stipulate the obligation to review,with the aim of introducing interest judgments for financial risk control.Therefore,from the perspective of financial risk control,it is reasonable for the factoring party to assume the obligation of reviewing the authenticity of the underlying transaction when claiming repayment of accounts receivable from the debtor.The fourth chapter of the main text is a legal analysis of the review path for the authenticity of the underlying transaction by the factoring party.In this regard,we should expand the interpretation of Article 763 of the Civil code,expand the "knowing" of the factoring agent to the "should know",and require the factoring agent to actively review the authenticity of the underlying transaction.Moreover,the examination of the authenticity of the underlying transaction is not a substantive examination of the debtor’s repayment ability,but a formal examination of the authenticity of the corresponding accounts receivable.The article 763 of the Civil code is explained,focusing on the analysis of the connotation of "knowing",and from the perspective of the dichotomy of property and debt,the burden of proof,and the balance of interests,it is concluded that the goodwill of the factoring should be expanded to the scope of what should be known.Furthermore,it is necessary to clarify the knowledge of the factoring party,which is the issue of the review path for the authenticity of the underlying transaction.Propose a review path with formality as the main focus and substance as the auxiliary,fully leverage the liquidity premium role of factoring financial instruments,respond to the original intention of factoring industry legislation,and alleviate the financing pressure of small and medium-sized enterprises.The fifth chapter of the main text is the legal improvement suggestions for the review of basic transactions by the factoring party.Firstly,it is necessary to clarify the basis for determining the effectiveness of factoring contracts,highlighting that factoring contracts are a multi-party legal relationship.Secondly,timely release of guiding cases to guide the determination of contractual liability in such situations,as practical situations are constantly changing and relevant legal and normative documents can only be formulated when the time is ripe.Finally,it is necessary to clarify the goodwill and review path of the factoring party.In order to better play the guiding role of the law and assist the healthy development of the factoring industry.