【作者】 孙超；

【导师】 刘保玉；

【作者基本信息】 山东大学 ， 民商法学， 2008， 硕士

【摘要】 应收账款融资系属债权融资方式之一种,在国外,其已被企业及金融机构广泛利用,而在我国却刚刚起步。如何完善我国相关的法律法规,以使其为应收账款融资的开展提供自由与安全并重的制度环境,至关重要。此外,应收账款融资实系将未来利益提前变现,是债权在当今经济生活中占据优越地位的体现之一,也是债权独立性、流通性和财产性终获凸显的标志。笔者相信对这个论题的研究有较强的理论意义与实践价值。本文除引言与结语外,共分为五章,主要论述应收账款融资的方式、标的、权利冲突及解决路径、通知机制的构造等:第一章为应收账款及其融资价值概述。应收账款是权利人因提供一定的货物、服务或者设施而获得的要求义务人付款的权利,但不包括因票据或者其他有价证券而产生的付款请求权。其具有金钱债权性及期待权性两种特质,这决定了其一方面适于融资,另一方面又有参与融资的强烈需求。应收账款融资对于促进中小企业的发展,拓展银行等金融机构的业务范围均有重要的实践意义,与相关制度顺利实现对接后能发挥更大的作用。第二章为应收账款融资的方式论。综观各国的实践运作,应收账款的融资方式呈现出多元化的发展趋势。根据当事人的合意中是否含有担保贷款的意图及应收账款不能清偿的风险最终由何人承担,可类型化为应收账款担保融资与转让融资。前者以应收账款质押为典型代表,而应收账款让与担保在经济效果与制度架构上与质押大致重合,没有另行规定之必要。此外,虽有学者认为应收账款质押与应收账款转让实属同类之制度,但本文从性质、运作机理、风险承担、收益及效果等五个方面论述了两者的不同。对于附带追索权的应收账款转让的性质,应作类型化的界定。而新兴的应收账款证券化这种融资方式应归类于应收款转让融资。第三章为应收账款融资的标的论。对于未来应收账款,一方面应承认其具有参与融资的可行性及必要性,并具有深刻的经济动因;另一方面为了保护融资企业一般债权人的利益和交易安全,应适当限制未来应收账款融资的效力。对于附带禁止转让约款的应收账款,应相对否定此类条款的效力,以提高融资效率,降低受让人或质权人的审查成本。但转让人或出质人仍应向第三债务人承担违约赔偿责任,这也符合债权转让和质押制度的总体发展趋势。对于部分应收账款,为了防止第三债务人的地位受到实质性削弱及使其避免处于多头诉讼的风险中,对其融资的效力在实体和程序上都要作出一定限制。对于附担保权的应收账款,若无特殊原因,担保权应随应收账款的转让而转让。在转让的程序方面,亦有其特殊性。第四章为应收账款融资中的权利冲突及解决路径。应收账款融资方式的多元化决定了应收账款之上权利冲突的可能性和复杂性,同一应收账款的双重出质、双重转让即为其典型体现,而存货抵押权人与延长的所有权保留卖主同直接利用应收账款融资的信贷人之间的权利冲突问题,在将来也是无法回避。解决权利冲突的根本之道在于确立合理的优先权规则。“登记在先,权利在先”的规则在各类型的权利冲突中都有发挥作用的空间,但其正当化的基础在于高效率的登记机制的建构。将登记机关统一为人民银行的信贷征信机构,具有合理性。第五章为应收账款融资的通知机制论。为了鼓励应收账款的融资,应优先保护受让人或质权人的利益,但对第三债务人,亦应有平衡保护之机制。此为让与(或设质)通知所承担的重任。赋予通知以绝对效力,使债务人明晰其清偿对象。但通知并非决定应收账款归属的因素,以使得暗保理和资产证券化业务能够顺利开展。受让人可成为发出通知的适格主体,但对此类通知的效力须作适当限制。预先通知无效,而迟延通知和后继转让的通知有效。通知不必拘泥于一定形式,在保理和资产证券化中发展出来的特殊的通知形式应予肯定。更多还原

【Abstract】 Account receivable financing is a kind of creditors’ right financing. In the foreign country, it has been widely used. However, in our country, it only makes the first step. How to perfect the relevant regulations in order to provide a free and safe environment for the account receivable financing is quite important. In addition, account receivable financing is a means to convert future benefits into present benefits. It is an attribute which displays the creditors’ right has dominated our modern economy life. The independent character, property character and circulation character are enforced. So I believe that they study on this subject is meaningful both in theory and practical aspect.Except the introduction and the conclusion, this thesis consists of five chapters, mainly discussing the means and the subject matter of the accounts receivable financing, the rights conflict and the solution mechanism, the constitution of the notification mechanism, and so on.The first chapter is about the general of accounts receivable financing. Accounts receivable is they have the nature of monetary creditors’ right and the expectancy right. This determines that the accounts receivable are appropriate for financing and demand to participate in the financing. Accounts receivable financing is practically important in encouraging the development of middle and small enterprises, and in broadening the business scope of financing institutions. It can play a greater role when it can operate in coordination with relevant regulations.The second chapter is on the means of the accounts receivable financing. By reviewing its practical application in many countries, the means of the accounts receivable financing begins to display the trend of diversification. According to the intention of interested parties and the risk born, the means can be classified as the pledge of accounts receivable and the assignment of accounts receivable. Compared with the pledge of the accounts receivable, the is basically same in the economic effects and system constitution, so it is not necessary to stipulate in the statute. In addition, although some scholars point out in fact, the pledge of accounts receivable and the assignment of accounts receivable belong to the same system, they are different in the five aspects, including the nature, the functioning mechanism ,the risk born, the benefits and the effects. As to the nature about the assignment of accounts receivable with recourse, this thesis thinks it ought to be treated differently. The asset securitization, as the burgeoning means of the accounts receivable financing, is a kind of assignment of accounts receivable.The third chapter is on the subject matter of the accounts receivable financing. As to the future accounts receivable, on one hand we must admit permitting them to participate in the financing is feasible and necessary. But in the other hand, in order to protect the assignor’s creditors’ right, the process and the effect of this assignment should be limited to a certain extend. When it comes to the accounts with the terms of forbidding the assignment, it is probable to deny the effect the effect of these terms in order to improve the financing efficiency and low the checking cost. But the assignors must compensate the loss which has been done to the third debtors. Although the parts of accounts receivable are allowed to be used to finance, its effects should be limited in order to prevent the third debtors’ benefit from materially being undermined. As to the accounts receivable with security interests, if there is no special reason, the security interests ought to be assigned when the accounts are assigned. Furthermore, there is special characters in the assigning procedure.The forth chapter is on the rights conflict and the solution mechanism in the accounts receivable financing. The diversification of financing means decides that the rights conflict could be possible and complex. The twice pledge and the cession are two typical cases. And the conflict between the inventory mortgager and the seller in the extending ownership reservation is inevitable in the future. The basic way of solving the conflicts lies in establishing reasonable priority rules. The first-to-file rule can take effect in each type of rights conflict. But its establishment depends on the construction of the registration systems which can embody high efficiency. Credit information agency has been chosen to registration institution in property law and this formula is feasible.The fifth chapter is on the constitution of the notification mechanism for the accounts receivable financing. In order to encourage accounts receivable financing, the benefits of the assigners should be put much emphasis on, however, the third debtors’ benefits can not be neglected. The notification mechanism can play an important role in balancing the interests. The notification has the absolute effect in order to make the third debtor be aware of the person he should pay for. But the notification can not become the determining factor for the ownership of the accounts, in order that the secretly factor and the securitization finance can be achieved smoothly. The assigner can deliver this notification, however, the effect of this kind of notification should be limited. The notification in advance is of no effect, but the delaying notification and the succeeding notification is effective. The form of the notification should not be limited to the written form. The notification form which derives from the factor and the securitization finance ought to be affirmed.更多还原