保理合同与债权让与通知

Factoring Contract and the Notification of Creditor's Rights Assignment

保理合同是无名合同,我国对保理合同的性质不明确,但将其视为债权转让的认定,在学界已经达成了较为一致的共识。根据《合同法》第80条关于债权转让的通知规则可知,让与通知是保理合同的对抗要件,并对买方、保理商及卖方各自发生不同的法律效力。相比于现行通知规则中的通知主体,允许保理合同中的通知人是让与人或受让人即保理商,更为合理。除此之外,在几类特殊保理的实务中,通知规则也该对应地有所调整。

Factoring contract is a kind of innominate contract. Although the nature of factoring contract is still undefined in China, it has reached a consensus agreement in the academic field about that fact that that factoring contract can be identified as creditors rights assignment. According to the 80th article in Contract Law, the assignment of creditor＇s rights is an elements of confrontation, and can take different legal effects respectively on the vendee, the vendor and the factor. Compared with notification subject in current rules, it would be more reasonable to admit the notifier in a factoring as the assignor or the assignee, the factor, namely. Besides, the notification rule should be adjusted accordingly in some kinds of special factoring.