论保理之债权让与

发布时间：2018-04-29 18:18

本文选题：保理 + 应收账款　；参考：《南京大学》2015年硕士论文

【摘要】：保理是一种新型贸易结算和融资工具。对保理的研究,一方面要着眼于保理业务的复杂功能致使的复杂合同安排,另一方面又要着眼于保理合同的准物权性。既要结合国内立法的债权让与的基本理论,还要结合国际立法促进债权流动性的规则。对保理的法律性质、保理中的应收账款转让的构成要件以及效力进行了阐述和分析。同时还总结各国立法和国际立法,在上述法律框架中寻找我国立法的不足,提出完善建议。本文一共分为五部分。第一部分笔者介绍了保理的一般理论,其中包括保理的概念、特征、种类、法律渊源,并对保理发展历史进行梳理,同时按照业务的特点对保理进行分类。同时也介绍了保理关系的法律关系。第一部分已经得出保理的核心是应收账款的让与,第二部分是对保理之债权让与基本理论概述。本章中对债权让与的概念保理中债权让与的特征进行分析,据此以区别一般债权让与和保理债权让与。对债权让与性质进行总结之后,笔者认为虽然适用"无因性"更适合保理中债权的流转,但无须对此作出特别规定而破坏我国法制统一,并且保理合同当事人可自己约定应收账款转让"无因性"。第三部分则是对债权让与的构成要件进行论述,笔者结合传统债权让与理论,分析保理之债权让与的构成要件。特别探讨了未来应收账款的可让与性和禁止转让债权条款的效力。而债权转让对第三人生效的要件有"自由主义"、"通知主义"和"登记主义"三种立法例,归根结底是对公平和效率两个价值的选择和平衡。对通知的主体、方式以及时间进行,都是对债权加速流转的要求的回应。第四部分是对保理之债权让与的效力进行了论述。应收账款转让符合生效要件的要求后,即面临转让效力的问题。一般来说,债权转让会产生对内对外的效力,保理之应收账款转让也具有对内和对外两种效力。对内效力是指债权让与对受让人的效力,对外效力是包括应收账款转让对债务人以及债权债务关系之外的第三人的效力。应收账款作为一般债权,其在经济生活中经历了从占有到利用的过程,交换价值被逐渐承认和日益重视的过程。因此,作为对人权的应收账款,其转让不仅对债的相对方有影响,也愈发影响到第三人的权利的实现。应收账款转让的对外效力实际上就是应收账款转让具有物权效力。第五部分是对涉及保理的法律规则的完善建议。在上文总结的基础上,首先列出保理应收账款转让的立法现状并指出其不足之处,接着结合保理债权转让构成要件和效力的提出立法建议,力争减少保理业务开展的障碍。当然笔者之建议只是一个初步的意见,针对保理业务的规要根据保理业务的丰富功能,并于应收账款转让合同方面和准物权方面相结合,兼顾效率和公平。
[Abstract]:Factoring is a new trade settlement and financing tool. On the one hand, the study of factoring should focus on the complicated contractual arrangement caused by the complex function of factoring business, on the other hand, it should focus on the quasi-real right of factoring contract. It is necessary to combine the basic theory of creditor's rights transfer in domestic legislation and the rules of international legislation to promote the mobility of creditor's rights. This paper expounds and analyzes the legal nature of factoring, the constitutive elements and the validity of the transfer of accounts receivable in factoring. At the same time, it summarizes the legislation of various countries and international legislations, finds out the deficiencies of our legislation in the above legal framework, and puts forward some suggestions for perfection. This paper is divided into five parts. In the first part, the author introduces the general theory of factoring, including the concept, characteristics, types, legal origin of factoring, and combing the history of factoring development, and classifying factoring according to the characteristics of business. At the same time, it also introduces the legal relationship of factoring relationship. The first part has concluded that the core of factoring is the transfer of accounts receivable, the second part is the basic theory of the assignment of rights to factoring. In this chapter, the characteristics of assignment of creditor's rights in the concept of assignment of creditor's rights are analyzed, according to which the general assignment of creditor's rights and the assignment of factoring claims are distinguished. After summing up the nature of the assignment of creditor's rights, the author thinks that although the application of "non-causality" is more suitable for the circulation of creditor's rights in factoring, there is no need to make special provisions to destroy the unity of legal system in our country. And factoring contract parties can agree on their own transfer of accounts receivable, "without cause." The third part is to discuss the constitutive elements of the assignment of creditor's rights, combining with the traditional theory of assignment of creditor's rights, the author analyzes the constitutive elements of the assignment of claims of factoring. In particular, the transferability of future accounts receivable and the validity of the non-transferable creditor's rights clause are discussed. In the end, the three legislative examples of the transfer of creditor's rights to the third party are "liberalism", "notification doctrine" and "registration doctrine", which are, in the final analysis, the choice and balance of the two values of fairness and efficiency. The main body, mode and time of notice are the response to the request of accelerating the circulation of creditor's rights. The fourth part discusses the validity of the assignment of factoring creditor's rights. After the transfer of accounts receivable meets the requirements of effective requirements, it will face the problem of transfer effectiveness. Generally speaking, the transfer of creditor's rights has internal and external effects, and the transfer of factoring accounts receivable has both internal and external effects. Internal effectiveness refers to the effect of assignment of creditor's rights to transferee, and external effectiveness includes the effect of assignment of accounts receivable to debtor and the third party other than creditor's rights and liabilities. As a general creditor's right, accounts receivable has experienced the process from possession to utilization in economic life, and the exchange value has been gradually recognized and paid more and more attention to. Therefore, as accounts receivable for human rights, its transfer not only affects the relative of debt, but also affects the realization of the rights of third parties. The external effect of the transfer of accounts receivable is in fact that the transfer of accounts receivable has the effect of real right. The fifth part is the suggestion to perfect the legal rules concerning factoring. On the basis of the above summary, this paper first lists the legislative status of factoring accounts receivable transfer and points out its shortcomings, and then puts forward legislative suggestions on the constitution and effectiveness of factoring creditor's rights transfer, and tries to reduce the obstacles of factoring business. Of course, the author's suggestion is only a preliminary opinion. According to the rich function of factoring business, the author combines the transfer contract of accounts receivable with the quasi-real right, and gives consideration to efficiency and fairness.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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