保理中应收账款转让法律性质的重新定位——以UNCITRAL动产担保交易示范法及指南为视角

Reorientation of the Legal Nature of Transfer of Accounts Receivable in Factoring——From the Perspective of UNCITRAL Model Law and Guidelines on Secured Transactions of Chattels

我国保理业务蓬勃发展的同时,相关的保理业务纠纷案件数量也大幅增长,出现了很多司法实践疑难点。背后的重要原因在于对保理业务法律性质认识不清及相应的保理当事人权利义务关系界定模糊。通说将保理业务中应收账款转让一概认定为传统民法中的债权转让,笔者认为对于保理业务应收账款转让的法律性质应予重新定位。结合实践中保理业务的特征以及对涉及应收账款转让的最新国际规范性文件UNCITRAL动产担保交易示范法及其颁布指南的梳理与分析,笔者提出,根据卖方还是保理商最终承担应收账款收回的风险,可将保理区分为债权转让型保理(彻底转让)及债权让与担保型保理(担保性转让)。

While factoring business is booming in China, the number of factoring disputes has also increased dramatically, resulting in many difficulties in judicial practice. The important reason behind this lies in the unclear understanding of the legal nature of factoring business and the vague definition of the corresponding rights and obligations of factoring parties. Generally speaking, the transfer of accounts receivable in factoring business is generally recognized as the transfer of creditor's rights in traditional civil law. The author believes that the legal nature of the transfer of accounts receivable in factoring business should be re-positioned. Combining with the characteristics of factoring in practice and combing and analyzing the latest international normative document UNCITRAL Model Law on Secured Transactions of Chattel Property and its promulgation guide, the author proposes that factoring can be divided into creditor's rights transferring factoring (outright transfer) and creditor's rights transferring and guaranteeing factoring according to whether the seller or the factoring firm ultimately undertakes the risk of receivable recovery.(Guaranteed transfer).