从保理制度探究债权让与规范的新模式

发布时间：2018-05-09 08:34

本文选题：保理 + 债权让与　；参考：《山东大学》2017年硕士论文

【摘要】：保理作为新型债权让与融资类型,其与传统的债权让与制度并不完全一致。从最初的催收账款服务保理到现在的隐蔽性保理、有追索权保理,保理业务种类也在不断创新、发展。然而,实务的创新性和法律的滞后性必然会导致司法实践中的漏洞百出,保理也不例外。我国法院对保理的性质、保理的效力以及将来债权让与等问题的处理一般都仅能依据《民法通则》或《合同法》之规定,此类案件审判结果通常较为死板,并不能对保理行业的发展起到有效的促进作用。因此,解决新型保理业务与法律滞后性之间的冲突就成了保理问题研究的关键。本文主要通过对保理性质和存在的问题的分析,提出对保理债权让与进行登记的管理模式。文章第一部分,先从保理的概念出发,分析两类较为特殊的保理业务类型,进而总结出保理的优势和法律性质,认定保理属于一种新型的债权让与。第二部分,关于保理业务中将来债权让与问题,从比较法和保理司法审判实践两个角度,认定现今的保理业务应当在制度层面适当开放将来债权让与,即只要将来债权是有合理期待或"可鉴别"的,就应当可以作为保理业务的客体。第三部分,是本文的重点,即保理债权让与对债务人的效力以及对第三人的效力的分析。关于保理债权让与对债务人的效力,让与通知对抗原则更为合理,我国也采纳了这种观点;而保理债权让与对第三人的效力方面,主要通过对日本、美国等适用登记对抗制度的国家债权让与制度的分析,得出登记对抗制度的优势,为保理业务适用债权让与登记制度的观点提供实践支撑。第四部分以天津试点区域为例,介绍国内适用保理债权让与登记制度的实例,提出债权让与登记制度在我国也是可行的。第五部分,通过分析前文内容,总结出保理登记对抗制度的优劣势,进而为我国保理债权让与登记制度建设提出符合我国国情的制度设计,以解决我国保理业务中将来债权让与问题以及债权让与对抗第三人效力难以确定的问题。总之,保理作为新兴的债权融资类型,仍处在发展、完善的阶段,只有为其设立健全、合理的登记机制,才能最大程度发挥其效能,保障保理行业的健康运营。
[Abstract]:Factoring, as a new type of creditor's rights transfer financing, is not completely consistent with the traditional creditor's rights transfer system. From the initial collection of account service factoring to the current hidden factoring, there is recourse factoring, factoring business types are constantly innovation and development. However, the innovation of practice and the lag of law will inevitably lead to defects in judicial practice, factoring is no exception. The nature of factoring, the validity of factoring and the assignment of creditor's rights in the future can only be dealt with according to the provisions of General principles of Civil Law or contract Law, and the trial results of such cases are usually rather rigid. Can not play an effective role in promoting the development of factoring industry. Therefore, resolving the conflict between new factoring business and legal lag becomes the key of factoring research. Based on the analysis of the nature and problems of factoring, this paper puts forward the management mode of registration of the assignment of factoring creditor's rights. In the first part of the article, the author analyzes two special types of factoring business from the concept of factoring, then summarizes the advantages and legal nature of factoring, and concludes that factoring belongs to a new type of assignment of creditor's rights. The second part, on the issue of future assignment of creditor's rights in factoring business, from the perspective of comparative law and judicial trial practice of factoring, it concludes that today's factoring business should properly open up the assignment of future creditor's rights at the system level. That is, as long as the creditor's rights in the future are reasonably expected or identifiable, they should be regarded as the object of factoring business. The third part is the emphasis of this paper, namely, the effect of factoring creditor's right to debtor and the third party. With regard to the validity of the assignment of factoring creditor's rights to the debtor, the principle of adversarial notice of assignment is more reasonable, and our country has adopted this view, while the effect of the transfer of factoring claims on third parties is mainly through Japan. Based on the analysis of the national creditor's rights transfer system applicable to the registration confrontation system in the United States, the advantages of the registration confrontation system are obtained, which provide practical support for the viewpoint of applying the creditor's rights assignment and registration system to the factoring business. The fourth part takes Tianjin pilot area as an example, introduces the domestic application of factoring creditor's rights transfer registration system, and points out that the creditor's rights transfer registration system is also feasible in our country. The fifth part, through the analysis of the previous contents, summarizes the advantages and disadvantages of factoring registration confrontation system, and then puts forward the system design in accordance with the national conditions for the construction of factoring creditor's rights transfer and registration system. In order to solve the problem of future assignment of creditor's rights in factoring business in our country and the problem that the validity of assignment of creditor's rights against third parties is difficult to determine. In short, factoring, as a new type of creditor's rights financing, is still in the stage of development and perfection. Only by establishing a sound and reasonable registration mechanism for factoring, can the efficiency of factoring be maximized and the healthy operation of factoring industry be guaranteed.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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