Viewpoint | Research on Pledge of Accounts Receivable
Published:
2022-09-20
1 Origin of the problem 1. Company A establishes a pledge registration of its own accounts receivable claims, Company B is the pledgee, and Company A transfers the claims to an unwitting Company C without authorization. Can Company B claim to Company C if it wants to realize the pledge? 2. Company A signs a creditor's rights transfer agreement with Company B to transfer the creditor's rights to Company B, and then Company A establishes a pledge registration for the creditor's rights, and Company C is the pledgee, can Company C obtain the pledge? If so, can Company C claim the pledge from Company B if it wants to realize the pledge? The above problems have produced great controversy in practice. Article 445 of the Civil Code provides that accounts receivable may not be assigned after they have been pledged, unless the pledgee and the pledgee agree to do so. However, the law does not further stipulate what the legal effect after the transfer should be, which should be invalid? The effect is pending? Effective? This also makes the courts in different places have different decisions in the face of such issues. To solve this problem, it is necessary to study the nature of the right of accounts receivable in the law, and the particularity of this kind of pledge right compared with the general pledge right. 2 Accounts receivable are not "movable property" in the sense of property law" The general theory of civil law generally holds that all things refer to physical objects, and the second thing can be divided into movable and immovable property. However, it should be noted that the understanding of physical objects should be from the perspective of physical objects, which refers to objects that have a certain material form and can be perceived by people, including tangible objects that occupy a certain space, such as solid, liquid and gaseous objects, as well as natural forces or energy such as electricity, heat, sound and light. Corresponding to the physical object is the non-physical object, which refers to the rights and interests other than the rights of the physical object, such as the rights of stocks, bills, bonds, etc., can be called intangible property, the essence of which is the interests of the subject of rights protected by law. As the subject matter of the pledge, accounts receivable is a kind of monetary payment request right, which is expressed as the right of the obligee to require the obligor to pay due to the provision of certain goods, services or facilities. It is the same as the nature of stocks and bonds. The interests of the subject of rights protected by law are not the property in the property law, and it does not belong to the category of movable property. 3 The pledge right of accounts receivable is a special security right. Accounts receivable is not a thing in the legal sense and does not affect its object as a property right. Article 115 of the Civil Code provides that if the law provides for a right as the object of a property right, it shall be in accordance with its provisions. Although accounts receivable cannot exist independently from the meaning between the receivable and the payer, however, the security interest itself is a property right that exists in pursuit of the exchange value of the subject matter, and it is precisely because of the independent exchange value that accounts receivable can become the subject of a pledge and exist as a kind of security interest. The pledge of accounts receivable has its particularity compared with the general pledge of movable property. The quality used for the pledge in the general movable property pledge is specific, when the right of quality is realized, the right holder can only dispose of the quality as a whole, which directly leads to the loss of ownership of the quality. In contrast, accounts receivable are essentially monetary claims, and rather than pledging a claim against a particular debtor, it is better to assume that the pledge is a currency with a particular security value, which is not only highly substitutable, but can also be quantified. In addition, the risk faced by the pledgee of accounts receivable is greater than that of the pledgee of movable property pledge. The reason is that the pledgee in the general movable property pledge relationship has transferred the direct possession of the pledge from the beginning, while the pledgee of accounts receivable lacks direct control over the accounts receivable, and the accounts receivable as the subject of the pledge are more likely to be disposed of by the pledgee, resulting in multiple pledges and the above-mentioned situations of pledge before concession, concession first and pledge later. Loopholes in the law also make it more difficult to deal with such problems in practice. Accounts receivable belong to monetary claims, the transfer of which shall be subject to the relevant provisions of the Civil Code Contract Book on the transfer of claims, while the pledge of accounts receivable belongs to the right of quality, and the provisions of the general provisions of the security property part shall apply. The problem is that the pledge of accounts receivable and the transfer of accounts receivable belong to the disposition of accounts receivable. As a lower degree of creditor's rights disposition, the pledge of accounts receivable needs to be registered and publicized before it can take effect. Since only the pledge of power and power needs to be registered, the disposition of direct transfer of rights needs to be registered. In fact, the transfer of accounts receivable with a higher degree of disposition is based on the provisions of the transfer of claims, and the right is transferred from the date of entry into force of the contract. Therefore, this kind of dual regulation model will bring about the contradiction of legal theory and legal application. 4 Pledge of accounts receivable from the perspective of "registration antagonism" Response to disputes The crux of the above problems is that the pledge of accounts receivable in our country adopts the registration validity doctrine, while accounts receivable are different from ordinary movable property and have no appearance of rights to be delivered. Moreover, the establishment of pledge on accounts receivable creates the effect of priority compensation for the pledgee and naturally replaces the change of accounts receivable. The high value of pledge of accounts receivable meets the substantial needs of the transaction. If all changes of accounts receivable rights are registered, it is bound to reduce the liquidity of accounts receivable and deviate from the efficiency requirements of the parties to the transaction. Therefore, most scholars argue that the registration of adversarial doctrine in legal design can improve the efficiency of transactions as much as possible to meet the needs of the parties. Under this model, the registered assignee has priority over the unregistered assignee, and the first registered assignee has priority over the later registered assignee, and the problem described at the beginning of this article can be solved: Case I The pledge is registered first, the transfer of accounts receivable is later, regardless of whether the assignment is notified to the debtor, the registered pledgee B may fight the creditor's transferee C, has priority in the settlement of the accounts receivable, and the debtor's settlement to the creditor's transferee based on the notification is invalid. C's rights and interests can also be protected, because the effect of the right of quality can be as much as the pledge property subrogation, C can claim the right of priority compensation for the property of A's transfer of accounts receivable. In case II, A assigns the receivable and then pledges it is not entitled to dispose of it, but it does not affect the effectiveness of C's registered pledge against transferee B based on the registration confrontation system. This view is not only a theoretical idea, but also reflected in the judicial thinking of some courts. (2018) In Judgment No. 7222, the court held that "the transfer of accounts receivable has been registered in the credit center of the People's Bank of China for the unified registration of the ownership of movable property, and has been publicized to an unspecified person, which can be used against a third party". In addition, the settlement order of multiple factoring in Article 768 of the Civil Code also embodies the spirit of "registration antagonism": if the creditor of accounts receivable enters into multiple factoring contracts for the same accounts receivable, resulting in multiple factoring claims, the registered accounts receivable shall be obtained before the unregistered ones; If all of them have been registered, the accounts receivable shall be obtained in the order of registration time; If none is registered, the accounts receivable are obtained by the factor specified in the notice of assignment that first arrives at the debtor of the accounts receivable; if neither registered nor notified, the accounts receivable are obtained in proportion to the amount of the factoring financing or remuneration for services.
1
Origin of the problem
1. Company A establishes a pledge registration of its own accounts receivable claims, Company B is the pledgee, and Company A transfers the claims to an unwitting Company C without authorization. Can Company B claim to Company C if it wants to realize the pledge?
2. Company A signs a creditor's rights transfer agreement with Company B to transfer the creditor's rights to Company B, and then Company A establishes a pledge registration for the creditor's rights, and Company C is the pledgee, can Company C obtain the pledge? If so, can Company C claim the pledge from Company B if it wants to realize the pledge?
The above problems have produced great controversy in practice. Article 445 of the Civil Code provides that accounts receivable may not be assigned after they have been pledged, unless the pledgee and the pledgee agree to do so. However, the law does not further stipulate what the legal effect after the transfer should be, which should be invalid? The effect is pending? Effective? This also makes the courts in different places have different decisions in the face of such issues. To solve this problem, it is necessary to study the nature of the right of accounts receivable in the law, and the particularity of this kind of pledge right compared with the general pledge right.
2
Accounts receivable are not "movable property" in the sense of property law"
The general theory of civil law generally holds that all things refer to physical objects, and the second thing can be divided into movable and immovable property. However, it should be noted that the understanding of physical objects should be from the perspective of physical objects, which refers to objects that have a certain material form and can be perceived by people, including tangible objects that occupy a certain space, such as solid, liquid and gaseous objects, as well as natural forces or energy such as electricity, heat, sound and light.
Corresponding to the physical object is the non-physical object, which refers to the rights and interests other than the rights of the physical object, such as the rights of stocks, bills, bonds, etc., can be called intangible property, the essence of which is the interests of the subject of rights protected by law. As the subject matter of the pledge, accounts receivable is a kind of monetary payment request right, which is expressed as the right of the obligee to require the obligor to pay due to the provision of certain goods, services or facilities. It is the same as the nature of stocks and bonds. The interests of the subject of rights protected by law are not the property in the property law, and it does not belong to the category of movable property.
3
The pledge right of accounts receivable is a special security right.
Accounts receivable is not a thing in the legal sense and does not affect its object as a property right. Article 115 of the Civil Code provides that if the law provides for a right as the object of a property right, it shall be in accordance with its provisions. Although accounts receivable cannot exist independently from the meaning between the receivable and the payer, however, the security interest itself is a property right that exists in pursuit of the exchange value of the subject matter, and it is precisely because of the independent exchange value that accounts receivable can become the subject of a pledge and exist as a kind of security interest.
The pledge of accounts receivable has its particularity compared with the general pledge of movable property. The quality used for the pledge in the general movable property pledge is specific, when the right of quality is realized, the right holder can only dispose of the quality as a whole, which directly leads to the loss of ownership of the quality. In contrast, accounts receivable are essentially monetary claims, and rather than pledging a claim against a particular debtor, it is better to assume that the pledge is a currency with a particular security value, which is not only highly substitutable, but can also be quantified.
In addition, the risk faced by the pledgee of accounts receivable is greater than that of the pledgee of movable property pledge. The reason is that the pledgee in the general movable property pledge relationship has transferred the direct possession of the pledge from the beginning, while the pledgee of accounts receivable lacks direct control over the accounts receivable, and the accounts receivable as the subject of the pledge are more likely to be disposed of by the pledgee, resulting in multiple pledges and the above-mentioned situations of pledge before concession, concession first and pledge later.
Loopholes in the law also make it more difficult to deal with such problems in practice. Accounts receivable belong to monetary claims, the transfer of which shall be subject to the relevant provisions of the Civil Code Contract Book on the transfer of claims, while the pledge of accounts receivable belongs to the right of quality, and the provisions of the general provisions of the security property part shall apply. The problem is that the pledge of accounts receivable and the transfer of accounts receivable belong to the disposition of accounts receivable. As a lower degree of creditor's rights disposition, the pledge of accounts receivable needs to be registered and publicized before it can take effect. Since only the pledge of power and power needs to be registered, the disposition of direct transfer of rights needs to be registered. In fact, the transfer of accounts receivable with a higher degree of disposition is based on the provisions of the transfer of claims, and the right is transferred from the date of entry into force of the contract. Therefore, this kind of dual regulation model will bring about the contradiction of legal theory and legal application.
4
Pledge of accounts receivable from the perspective of "registration antagonism"
Response to disputes
The crux of the above problems is that the pledge of accounts receivable in our country adopts the registration validity doctrine, while accounts receivable are different from ordinary movable property and have no appearance of rights to be delivered. Moreover, the establishment of pledge on accounts receivable creates the effect of priority compensation for the pledgee and naturally replaces the change of accounts receivable. The high value of pledge of accounts receivable meets the substantial needs of the transaction. If all changes of accounts receivable rights are registered, it is bound to reduce the liquidity of accounts receivable and deviate from the efficiency requirements of the parties to the transaction. Therefore, most scholars argue that the registration of adversarial doctrine in legal design can improve the efficiency of transactions as much as possible to meet the needs of the parties.
Under this model, the registered assignee has priority over the unregistered assignee, and the first registered assignee has priority over the later registered assignee, and the problem described at the beginning of this article can be solved:
Case I The pledge is registered first, the transfer of accounts receivable is later, regardless of whether the assignment is notified to the debtor, the registered pledgee B may fight the creditor's transferee C, has priority in the settlement of the accounts receivable, and the debtor's settlement to the creditor's transferee based on the notification is invalid. C's rights and interests can also be protected, because the effect of the right of quality can be as much as the pledge property subrogation, C can claim the right of priority compensation for the property of A's transfer of accounts receivable. In case II, A assigns the receivable and then pledges it is not entitled to dispose of it, but it does not affect the effectiveness of C's registered pledge against transferee B based on the registration confrontation system.
This view is not only a theoretical idea, but also reflected in the judicial thinking of some courts. (2018) In Judgment No. 7222, the court held that "the transfer of accounts receivable has been registered in the credit center of the People's Bank of China for the unified registration of the ownership of movable property, and has been publicized to an unspecified person, which can be used against a third party". In addition, the settlement order of multiple factoring in Article 768 of the Civil Code also embodies the spirit of "registration antagonism": if the creditor of accounts receivable enters into multiple factoring contracts for the same accounts receivable, resulting in multiple factoring claims, the registered accounts receivable shall be obtained before the unregistered ones; If all of them have been registered, the accounts receivable shall be obtained in the order of registration time; If none is registered, the accounts receivable are obtained by the factor specified in the notice of assignment that first arrives at the debtor of the accounts receivable; if neither registered nor notified, the accounts receivable are obtained in proportion to the amount of the factoring financing or remuneration for services.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
