保理合同中应收账款多重转让的优先顺序——以《民法典》第768条为中心

Priority of Multiple Assignments of Accounts Receivable in Factoring Contracts

《民法典》保理合同章规定了保理合同、担保合意和应收账款债权转让三部分的内容。无追索权的保理本质上是债权买卖合同结合应收账款债权转让,买卖合同是债权转让的原因行为。有追索权的保理本质上是借款合同结合担保合意和债权让与担保。担保合意构成债权让与担保的原因行为,并决定债权让与担保中的清算义务。《民法典》第768条规定了同一应收账款订立多个保理合同的数个保理人之间的优先顺序,确立了登记优先、通知次优的规则。在未登记也未通知时,引入了按比例分割债权的规则。尽管我国学说对于债权分割规则批评较多,但是这一规则的价值基础在于债权人平等原则。在债务给付可分的情况下,多数债权受让人之间形成按份债权关系;在债务给付不可分的情况下,多数债权受让人之间形成债权准共有。

The chapter of factoring contract in Civil Code of China includes three parts:factoring contract,guarantee consensus and assignment of accounts receivable.The essence of non-recourse factoring is the contract for the sale of credit combined with assignment of accounts receivable,and the sale contract is the cause of the assignment of credit.Correspondingly,the essence of recourse factoring is the loan contract combined with guarantee consensus and fiduciary transfer of title.Meanwhile,the guarantee consensus constitutes the reason of the fiduciary transfer of title and determines the liquidation obligation in the fiduciary transfer of title.Article 768 of the Civil Code stipulates the priority order among several factors who sign contracts for the same accounts receivable,and establishes the rule of registration priority and notification of second-best.However,when they are not registered or notified,the rule dividing credit pro rata is applied.Although there are many criticisms of the rule in our country,the value of that rule bases on the principle of equality of credit.In the case that the credit is divisible,their relationship is several co-ownership if there are many assignees of the credit.Comparatively,their relationship is quasi-common ownership in the case that the credit is not divisible.