我国保理中债权让与法律问题研究
发布时间：2018-12-25 17:00
【摘要】：保理是一种综合性金融服务,其本质是通过收购以赊销方式进行销售的企业的应收账款,并为其提供融资及其他相关服务的金融产品。保理融资作为债权融资的方式之一,其实质是通过债权的让与将蕴含在应收账款内的财产价值提前变现,就应收账款而言,在变现之前企业不仅利用而且还要承担对其管理和催收的负担。而将之让与则相当于提前回收了未来资金,减轻了企业的管理负担并使得企业有充足的资金扩大再生产,使得资源得到充分的利用。理论上关于保理性质的学术观点主要有:委托代理说、债权质押说、清偿代为说、让与担保说及债权让与说。前述四种学说都在一定程度上反映出了保理的部分功能,但是并不能较好的涵盖保理的全部法律特征及功能。笔者认为如结合对保理合同的定义、当事人的权利义务关系以及相关国际立法的立场等方面综合分析将保理定性为债权让与能较为全面的反映出保理的法律特征。然而保理是由国际贸易中发展而来,带有浓厚的商业惯例的痕迹,与一般的债权让与相比有着许多特殊之处,用传统的债权让与制度去解决处于不断发展之中的保理业务将出现的许多问题,如在未来应收账款是否可以让与、附有禁止让与条款的应收账款能否让与、债权让与的优先权规则以及有关债权让与通知的相关规定等问题上,传统的债权让与制度存在着缺乏明确规定或者与实践操作相背离的情形。保理融资作为应收账款融资的一种,在帮助解决我国中小企业融资,拓展金融机构业务范围等方面具有重要的战略意义。因此笔者认为,应当确立以促进债权流转、保障交易安全和提高债权融资效率的立法理念,并以此理念来完善保理相关法律制度。具体而言,应承认未来债权参与融资的可行性和必要性,但是为了保障其他债权人的利益和交易安全,可以对其作出适当的限制;为提高融资的效率和受让人的审查成本,应当否定附有禁止让与条款的应收账款对外效力;在保理融资权利冲突的优先权规则上,笔者认为可以借鉴美国《统一商法典》中“登记在先,权利在先”的规则,建立统一动产担保登记制度,对于解决各类型的权利冲突都能发挥出较好的作用;关于保理业务中债权让与通知的相关问题,在通知的效力方面,为了鼓励保理业务的发展,应当优先保护保理商(受让人)的利益,同时也应兼顾债务人之利益,赋予通知以绝对效力,使得债务人得以明晰清偿对象,但同时应当明确通知效力限于对抗债务人,而并不影响应收账款的归属;在通知的主体方面,纵观各国的立法趋势和相关国际立法的态度应当赋予保理商(受让人)以通知的权利。
[Abstract]:Factoring is a comprehensive financial service, whose essence is to purchase the accounts receivable of the enterprise selling on credit, and provide financing and other related services for the financial products. Factoring financing as one of the ways of creditor's rights financing, its essence is to realize the property value contained in the accounts receivable in advance through the transfer of the creditor's rights, as far as accounts receivable is concerned, Before the realization, enterprises not only use but also bear the burden of management and collection. The transfer is equivalent to recovering the future funds in advance, lightening the management burden of the enterprises and making the enterprises have sufficient funds to expand reproduction and make full use of the resources. The main academic viewpoints on factoring are: principal-agent theory, pledge of creditor's rights, settlement agent, assignment guarantee and assignment of creditor's rights. To a certain extent, the above four theories reflect some functions of factoring, but they can not cover all the legal features and functions of factoring. The author thinks that if the definition of factoring contract, the relationship between the rights and obligations of the parties and the position of relevant international legislation, the author comprehensively analyzes factoring as the legal characteristics of factoring which can reflect comprehensively the assignment of creditor's rights. However, factoring is developed from the international trade, with a strong trace of business practices, and compared with the general assignment of claims, there are many special places. Using the traditional creditor's rights transfer system to solve many problems that will appear in the developing factoring business, such as whether accounts receivable can be transferred in the future, whether the accounts receivable with prohibition clauses can be transferred, With regard to the rules of priority of assignment of creditor's rights and the relevant provisions of notice of assignment of creditor's rights, the traditional system of assignment of creditor's rights is lack of clear stipulation or deviates from practice. Factoring financing, as a kind of accounts receivable financing, has important strategic significance in helping to solve the financing of small and medium-sized enterprises in China and expanding the business scope of financial institutions. Therefore, the author believes that we should establish the legislative idea to promote the circulation of creditor's rights, ensure the security of transaction and improve the efficiency of creditor's rights financing, and perfect the relevant legal system of factoring. In particular, the feasibility and necessity of future creditor's participation in financing should be recognized, but in order to protect the interests of other creditors and the security of transactions, they may be subject to appropriate restrictions; In order to improve the efficiency of financing and the examination cost of the transferee, the external effectiveness of accounts receivable with prohibition clause should be denied. On the priority rule of factoring financing right conflict, the author thinks that we can draw lessons from the "registration first, right first" rule in the uniform Commercial Code of the United States, and establish a unified movable property security registration system. It can play a better role in solving all kinds of conflicts of rights; With regard to issues relating to notice of assignment of creditor's rights in factoring business, in order to encourage the development of factoring business, in order to encourage the development of factoring business, priority should be given to the protection of the interests of the factor (transferee) as well as to the interests of the debtor, as far as the effectiveness of the notice is concerned. Endow the notice with absolute effect, so that the debtor can clear the object of liquidation, but at the same time, it should be clear that the effectiveness of the notice is limited to the debtor, and does not affect the attribution of accounts receivable; With regard to the subject of notification, the legislative trend of various countries and the attitude of relevant international legislation should give the factor (transferee) the right to notify.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.99
本文编号：2391394
[Abstract]:Factoring is a comprehensive financial service, whose essence is to purchase the accounts receivable of the enterprise selling on credit, and provide financing and other related services for the financial products. Factoring financing as one of the ways of creditor's rights financing, its essence is to realize the property value contained in the accounts receivable in advance through the transfer of the creditor's rights, as far as accounts receivable is concerned, Before the realization, enterprises not only use but also bear the burden of management and collection. The transfer is equivalent to recovering the future funds in advance, lightening the management burden of the enterprises and making the enterprises have sufficient funds to expand reproduction and make full use of the resources. The main academic viewpoints on factoring are: principal-agent theory, pledge of creditor's rights, settlement agent, assignment guarantee and assignment of creditor's rights. To a certain extent, the above four theories reflect some functions of factoring, but they can not cover all the legal features and functions of factoring. The author thinks that if the definition of factoring contract, the relationship between the rights and obligations of the parties and the position of relevant international legislation, the author comprehensively analyzes factoring as the legal characteristics of factoring which can reflect comprehensively the assignment of creditor's rights. However, factoring is developed from the international trade, with a strong trace of business practices, and compared with the general assignment of claims, there are many special places. Using the traditional creditor's rights transfer system to solve many problems that will appear in the developing factoring business, such as whether accounts receivable can be transferred in the future, whether the accounts receivable with prohibition clauses can be transferred, With regard to the rules of priority of assignment of creditor's rights and the relevant provisions of notice of assignment of creditor's rights, the traditional system of assignment of creditor's rights is lack of clear stipulation or deviates from practice. Factoring financing, as a kind of accounts receivable financing, has important strategic significance in helping to solve the financing of small and medium-sized enterprises in China and expanding the business scope of financial institutions. Therefore, the author believes that we should establish the legislative idea to promote the circulation of creditor's rights, ensure the security of transaction and improve the efficiency of creditor's rights financing, and perfect the relevant legal system of factoring. In particular, the feasibility and necessity of future creditor's participation in financing should be recognized, but in order to protect the interests of other creditors and the security of transactions, they may be subject to appropriate restrictions; In order to improve the efficiency of financing and the examination cost of the transferee, the external effectiveness of accounts receivable with prohibition clause should be denied. On the priority rule of factoring financing right conflict, the author thinks that we can draw lessons from the "registration first, right first" rule in the uniform Commercial Code of the United States, and establish a unified movable property security registration system. It can play a better role in solving all kinds of conflicts of rights; With regard to issues relating to notice of assignment of creditor's rights in factoring business, in order to encourage the development of factoring business, in order to encourage the development of factoring business, priority should be given to the protection of the interests of the factor (transferee) as well as to the interests of the debtor, as far as the effectiveness of the notice is concerned. Endow the notice with absolute effect, so that the debtor can clear the object of liquidation, but at the same time, it should be clear that the effectiveness of the notice is limited to the debtor, and does not affect the attribution of accounts receivable; With regard to the subject of notification, the legislative trend of various countries and the attitude of relevant international legislation should give the factor (transferee) the right to notify.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.99
【参考文献】
相关期刊论文 前7条
1 林秀榕;陈光卓;;有追索权国内保理的法律性质[J];人民司法(案例);2016年32期
2 陈灿平;肖秋平;;自由贸易试验区保理法律适用问题探究[J];法学杂志;2015年11期
3 江苏省高级人民法院民二庭课题组;夏正芳;李荐;;国内保理纠纷相关审判实务问题研究[J];法律适用;2015年10期
4 方新军;;合同法第80条的解释论问题——债权让与通知的主体、方式及法律效力[J];苏州大学学报(哲学社会科学版);2013年04期
5 李永锋;李昊;;债权让与中的优先规则与债务人保护[J];法学研究;2007年01期
6 黄斌;;国际保理业务中应收账款债权让与的法律分析[J];清华大学学报(哲学社会科学版);2006年02期
7 韩海光,崔建远;论债权让与和对抗要件[J];政治与法律;2003年06期
相关博士学位论文 前2条
1 杨骥;论保理业务对传统债权让与理论的冲击和变革[D];湖南大学;2014年
2 孙超;应收账款融资的法律问题研究[D];山东大学;2011年
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