国内保理业务中应收账款转让法律问题研究

发布时间：2018-10-14 14:27

【摘要】：保理业务是一种新型的综合性金融服务,因其在推动出口以及帮助中小企业融资等方面拥有着其他业务无法比拟的优势,近几年来在我国呈迅猛发展之势。保理业务所包括的基本服务有应付账款收取、贸易融资、坏账担保、账务管理等。但作为国内的一项新兴的金融服务,由于国内保理立法与其他相关法律法规的不完善,也使其存在一定问题与风险,在一定程度上制约了其发展。本文从法律角度出发,首先指出保理业务的实质其实就是应收账款的债权转让,基于此分析了保理业务的法律基础及存在的风险与问题,主要问题包括:因某些因素导致应收账款不具有真实性的问题,因合同无效造成受让应收账款不具合法性的问题,因债务人不如约清偿债务造成保理商无法收回应收账款的问题,因从权利没有转让造成受让应收账款存在权利瑕疵的问题,因应收账款被多重转让使保理商与其他债权受让人之间产生利益冲突的问题,因没有通知或通知不合法造成应收账款转让不合法的问题。并根据国外以及国内关于保理业务立法的优点以及不足,结合笔者个人观点进行分析,并提出我国在保理立法上的意见,包括允许保理业务中债权转让自由性,当事人协议禁止债权转让应该无效,未来债权的立法,通知主义应是保理业务中债权转让的生效要件,将保理业务中债权转让合同规定为要式合同等等。最后,笔者还针对具体操作问题提出了一些保障措施,如严格审查债权人资格等。
[Abstract]:Factoring is a new type of comprehensive financial service, because of its advantages in promoting exports and helping small and medium-sized enterprises to finance, it has been developing rapidly in China in recent years. Factoring includes basic services such as collection of accounts payable, trade finance, guarantee of bad debts, account management, etc. However, as a new financial service in China, due to the imperfection of domestic factoring legislation and other relevant laws and regulations, it also has certain problems and risks, which restricts its development to a certain extent. From the legal point of view, this paper first points out that the essence of factoring business is the transfer of accounts receivable creditor's rights. Based on this, the legal basis, risks and problems of factoring business are analyzed. The main problems include: the lack of authenticity of accounts receivable due to certain factors, the illegality of assigned accounts receivable due to invalid contracts, The failure of the debtor to pay off debts in accordance with the contract causes the factor to be unable to collect the accounts receivable, and the problem of the defect of the assigned accounts receivable due to the non-transfer of the right, The multiple transfer of accounts receivable causes conflicts of interest between the factor and other transferees of creditor's rights, and the illegal transfer of accounts receivable is caused by the lack of notice or the illegality of notification. And according to the advantages and disadvantages of foreign and domestic legislation on factoring business, combined with the author's personal point of view, the author puts forward our country's views on factoring legislation, including allowing the free transfer of creditor's rights in factoring business. The agreement between the parties to prohibit the transfer of creditor's rights should be invalid, the legislation of future creditor's rights, Notification should be the effective elements of the transfer of creditor's rights in factoring business, and the contract of assignment of creditor's rights in factoring business should be defined as the contract of material type, etc. Finally, the author puts forward some safeguard measures, such as strict examination of creditor's qualification.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.28

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