应收账款融资公示问题研究

发布时间：2018-06-09 06:32

本文选题：应收账款融资 + 公示　；参考：《山东大学》2017年硕士论文

【摘要】：所谓应收账款融资,从法学角度而言,就是将应收账款置于流通领域,以转让或担保的形式实现债权之流转。目前被广泛使用的应收账款融资模式为应收账款质押融资和应收账款转让融资,两种融资方式之间存在彼此独立又部分趋同的微妙关系。事实上应收账款的概念属于舶来品,因而对其概念的界定尤为重要,中国人民银行出台的《应收账款质押登记办法》对应收账款的概念界定基本上满足了创设应收账款融资制度的需要,但为维护物权法定之权威,应在法律层面予以肯定,或至少通过司法解释予以明确。债权地位上升已是不可忽视的潮流,进而提出了通过公开便捷的方式将债权变动和负担情况予以公示以满足确保融资秩序与安全的需求。我国《物权法》赋予应收账款质押融资以登记为公示方法,并由中国人民银行征信中心建立了全国统一电子登记服务系统,但应收账款转让融资仍由《合同法》中的债权让与制度调整,未规定应收账款转让融资的公示制度。各国为了保障应收账款融资安全,采用了不同公示方法,包括通知第三债务人、交付债权证书和登记。本文在分析上述公示方法后认为,尚不存在一种可以独立适用的完美方法,进而得出应收账款融资制度应采纳通知与登记并行的公示方法的结论。通知第三债务人是在不增加债务人负担的前提下并完成对其公示的最佳选择,对其他潜在交易人的公示就要选择登记公示方法。二者构造与目的不同,相互独立,相互配合,共同实现全面高效的公示效果。通知机制在两种不同的应收账款融资制度中的具体适用上存在差异。在应收账款质押的情形中,通知的约束力表现在限制第三债务人向出质人清偿债务以免除其义务。在应收账款转让的情形中,通知的拘束力表现在直接改变第三债务人的清偿对象。对于登记效力的选择,本文认为根据应收账款融资在法律体系中的地位及其自身特性,选择登记对抗主义更为适宜。在登记制度具体程序上,本文以中国人民银行于2015年1月发布的《应收账款质押登记办法(修订征求意见稿)》为切入点,对登记流程与查询流程进行详细论述。
[Abstract]:The so-called accounts receivable financing, from the legal point of view, is to put the accounts receivable in the circulation field to transfer or guarantee the transfer of creditor's rights. At present, the widely used accounts receivable financing models are accounts receivable pledge financing and accounts receivable transfer financing. The two financing methods have a subtle relationship of independence and partial convergence. In fact, the concept of accounts receivable is imported, so the definition of the concept is particularly important. The definition of the concept of accounts receivable issued by the people's Bank of China basically meets the need of establishing the financing system of accounts receivable, but in order to maintain the authority of the law of property, it should be affirmed at the legal level. Or at least by judicial interpretation. The rising status of creditor's rights has become a trend that can not be ignored, and it is put forward that the changes and burdens of creditor's rights should be publicized in an open and convenient way to meet the needs of ensuring the order and security of financing. The Real right Law of our country has given the pledge financing of accounts receivable to register as the public demonstration method, and the credit information center of the people's Bank of China has established a unified national electronic registration service system. However, the transfer financing of accounts receivable is still adjusted by the assignment of creditor's rights system in contract Law, and there is no public system of transfer financing of accounts receivable. In order to ensure the security of accounts receivable financing, different publicity methods are adopted, including notification of the third debtor, payment of debt certificate and registration. After analyzing the above methods, this paper holds that there is not a perfect method which can be applied independently, and the conclusion is that the system of accounts receivable financing should adopt the method of public announcement parallel to notification and registration. To notify the third debtor is to complete the best choice of publicity without increasing the burden of the debtor, and the public notice to other potential traders should choose the method of registration and publicity. The structure and purpose of the two are different. They are independent and cooperate with each other to achieve a comprehensive and efficient publicity effect. There are differences in the application of notification mechanism in two different accounts receivable financing systems. In the case of pledge of accounts receivable, the binding force of notice is to restrict the third debtor from paying off his debt to the mortgagor in order to relieve him of his obligation. In the case of transfer of accounts receivable, the binding force of notification is to directly change the third debtor's repayment object. As for the choice of registration effectiveness, this paper argues that it is more appropriate to choose registration antagonism according to the status of accounts receivable financing in the legal system and its own characteristics. In the specific procedure of the registration system, this paper discusses the registration process and the inquiry flow in detail from the point of view of the Registration method of accounts Receivable pledge (revised draft of soliciting opinions) issued by the people's Bank of China in January 2015.
【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】：D923.2

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