论有追索权保理的法律性质——基于司法审判观点的实证研究

The Legal nature of Factoring With Resource——An Empirical Study Based on the Judicial Trial

对于有追索权国内保理的法律性质,我国司法审判主要有四种观点,即"以让与债权为担保的借贷法律关系"、"以转让债权为间接给付的借贷法律关系"、"附有转换为借款合同约定的债权转让法律关系"以及"附担保条件的债权转让法律关系"。本文认为有追索权保理的法律结构是一种"中立"的法律结构,需要根据其直接实现的商业目的和功能判断其法律性质,融资担保类的有追索权保理的主法律关系是借贷关系,而账款担保类的有追索权保理的主法律关系是债权转让关系。

With regard to the legal nature of domestic factoring with recourse, there are four main viewpoints in China＇s judicial trials, namely, ＂the legal relationship of lending with creditor＇s rights as guarantee＂, ＂the legal relationship of lending with indirect payment of transfer of creditor＇s rights＂, ＂ the legal relationship for the transfer of creditor＇s rights that is converted into a right of loan contract＂and＂the legal relationship for the transfer of creditor＇s rights with guarantee conditions＂. This paper believes that the legal structure of recourse factoring is a kind of ＂neutral＂ legal structure, which needs to judge its legal nature according to its directly realized commercial purpose and function. The main legal relationship of financing guarantees with recourse factoring It is a loanlending relationship, and the main legal relationship of the account-guaranteed category with recourse factoring is the transfer of creditor＇s rights.