Introduction 1. 2065438+On April 22, 2005, Jinke Factoring Company signed a Factoring Financing Service Contract with the seller Toarey Yang Company, stipulating that the seller would transfer the buyer's creditor's rights and related rights to the factor, and the factor would give the seller a factoring financing credit with a total amount of 80 million yuan after examination and confirmation.
Two. 2065438+On April 22nd, 2005, Toarey Yang Company applied to Jinke Factoring Company for factoring financing, and transferred the project receivables and rights enjoyed by Juneng Company to Jinke Factoring Company.
3. Afterwards, Jinke Factoring Company agreed to accept the above accounts receivable of Toarey Yang Company and provide 80 million yuan for factoring financing. Both parties jointly delivered the Notice of Assignment of Accounts Receivable Creditor's Rights to Juneng Company, and Juneng Company confirmed it on the receipt. Toarey Yang Company confirmed that it had received RMB 80 million in factoring financing.
Four, after the expiration of the term of factoring financing, Jinke Factoring Company filed a lawsuit on the grounds that Juneng Company should pay 10000 yuan. Juneng Company believes that Toarey Yang Company has fulfilled its repurchase obligation and should not bear any civil liability.
5. The first-instance judgment of Chongqing No.1 Intermediate People's Court held that a factoring financing sum of 30 million yuan under the factoring contract of 2065438+July 22, 2006 was not actually fulfilled, and Jinke Factoring Company claimed that the corresponding project payment had a contractual basis and should be supported. Giant Energy Company refused to accept the appeal.
6. The second-instance judgment of Chongqing Higher People's Court holds that Jinke Factoring Company enjoys the right of recourse based on the factoring contract, and can choose to recover from Yangtong Company or claim the creditor's rights of accounts receivable from Juneng Company. As for whether Toarey Yang Company has repaid all the factoring financing, it will not increase the responsibility of Juneng Company, so the original judgment is upheld.
Reference point: Tang Qinglin and Li Shu, professional lawyers of Beijing Ting Yun Law Firm, have handled and analyzed a large number of legal issues involved in this article, and have rich practical experience. On this issue discussed in this article, they think:
One of the focuses of the dispute in this case is whether the factor can directly claim the payment of the creditor's rights of accounts receivable from the seller when the buyer fails to repay all the factoring financing funds. Chongqing No.1 Intermediate People's Court and Chongqing High Court have comprehensively combed and fully demonstrated this issue.
First, whether the buyer has fully repaid the factoring financing. After investigation, it was found that the factoring financing amount of 2065438+30 million yuan due on July 22, 2006 was agreed to be offset by the factoring financing amount of 30 million yuan from Yimei Electric Company, but it was actually failed by Yimei Electric Company due to its own reasons, and the explanation of Yimei Electric Company shall prevail. Therefore, according to the proportion of transferred accounts receivable, the buyer Toarey Yang Company still owes ten thousand yuan to Jinke Factoring Company.
Second, the question of how the factor exercises the right of recourse. In the case that the law does not stipulate this and the agreement in the factoring financing service contract is not clear, the factor has the right to demand both the seller to buy back the accounts receivable and the buyer to repay the debts. In view of the fact that Juneng Company has not fulfilled its obligation to pay the project funds, and Toarey Yang Company has clearly agreed that Jinke Factoring Company claims accounts receivable, it has settled the principal and interest of factoring financing with Jinke Factoring Company separately. Therefore, Jinke Factoring Company claims that there is nothing wrong with paying off debts to Juneng Company, and it does not harm the legitimate rights and interests of Juneng Company.
Third, whether it is necessary to review whether there is offset in the financing of 30 million yuan. Toarey Yang Company agreed that Jinke Factoring Company would claim accounts receivable from Juneng Company, and then settle the principal and interest of Poly Financing with Jinke Factoring Company respectively. This is in line with the factoring financing service contract and does not harm the interests of the energy gathering company. Even if the financing amount of 80 million yuan has been returned, if Toarey Yang Jiansi agrees to claim the creditor's rights by Jinke Factoring Company instead of requesting to cancel the creditor's rights, the rights and interests of Juneng Jiansi will not be harmed, and the two parties will settle separately. Therefore, the court does not need to review whether the financing amount of 30 million yuan is offset.
Summary of Practical Experience The professional lawyers of Beijing Ting Yun Law Firm, Tang Qinglin and Li Shu, have handled and analyzed a large number of legal issues involved in this paper, and have rich practical experience. At the same time, I also summed up my experience in handling cases and published the book "Legal Practice in Ting Yun", from which this article is extracted. The authors of this book are all front-line professional lawyers of Beijing Ting Yun Law Firm, with profound theoretical foundation and rich practical experience. The topic selection and writing style of this book department are mainly based on actual case analysis, trying to seek the most direct solution to the difficult and complicated legal problems often encountered in practice from the actual needs.
There is no mature practice about whether the factor can claim to pay off the debt from the buyer and repurchase the accounts receivable from the seller at the same time. This case responds to this question to a certain extent, which is of guiding significance to judicial practice. Combined with the case, the practical experience is summarized as follows.
First, the basis of claim. The idea of the referee in this case is whether the agreement in the factoring contract can be the basis for the factoring firm to exercise the right of recourse in the absence of clear agreement in the current law. In fact, the factoring financing service contract involved stipulated the factoring with recourse. In factoring business, the so-called factoring with recourse means that the factor has the right to choose to recover from the creditors or debtors of accounts receivable under certain circumstances. Specific to this case, Jinke Factoring Company can choose to claim the repurchase of accounts receivable from Yangtong Company or claim the creditor's rights of accounts receivable from Juneng Company.
Second, the question of how the bill discounter exercises the right of recourse against accounts receivable. In this case, the two sides have opposite views. Juneng Company believes that Jinke Factoring Company has declared its creditor's rights to the manager of Yangtong Company, which proves that it has advocated the repurchase of accounts receivable and has no right to claim creditor's rights. Jinke Factoring Company believes that there is a contractual basis for claiming to buy back accounts receivable from Juneng Company, and with the consent of Toarey Yang Company, it will not harm the interests of Juneng Company. In fact, this is a very good question, and there are many practices in practice, but there are inconsistencies and inconsistencies. The enlightenment of this case is that the legal gap can be filled by stipulating the clauses that are beneficial to the recourse of the factor in the factoring contract. Therefore, it is necessary to share such clauses, namely: "If the buyer fails to pay the relevant accounts receivable in full before the maturity date of factoring financing for any reason, the factor has the right to exercise the right of recourse against the seller and ask the seller to buy back the above-mentioned outstanding accounts receivable of the buyer within the specified time and pay the corresponding purchase consideration; If the seller fails to complete the repurchase and pay the purchase consideration within the specified time, it shall also pay the overdue management fee and other payables to the factor; After the seller has fully fulfilled the above-mentioned repurchase and payment obligations, the factor shall transfer the corresponding accounts receivable to the seller. "
Third, whether to repay all the factoring financing money will affect the recourse of the factor. The particularity of this case is that the factor can settle accounts with the creditors of accounts receivable after exercising the right of recourse against the debtors of accounts receivable. In other words, whether the creditor of accounts receivable repays the factoring financing does not affect the right of recourse of the factor against the debtor of accounts receivable. Therefore, in this context, the people's court does not need to examine whether the creditors of accounts receivable repay the factoring financing, and directly supports the claim of the factor to buy back the accounts receivable from the debtor.
(China is not a case law country, and the cases cited in this article are not guiding cases and are not binding on the trial and judgment of similar cases. At the same time, it is particularly important to note that in judicial practice, the details of each case are very different, and this judgment must not be directly quoted. Lawyers of Beijing Ting Yun Law Firm collate and study the judgment documents of different cases, aiming at providing different research angles and observation perspectives for more readers. It does not mean that the lawyers of Beijing Ting Yun Law Firm agree with and support the judgment opinions of this case, nor does it mean that the court must quote or refer to these judgment rules when handling similar cases. )
Relevant laws and regulations "People's Republic of China (PRC) Civil Code"
Part III Contract Chapter XVI Factoring Contract
Article 761 A factoring contract refers to a contract in which the creditor of accounts receivable transfers the existing or existing accounts receivable to the factor, and the factor provides the debtor of accounts receivable with services such as financing, management or collection of accounts receivable, and payment guarantee.
Article 766 Where the parties agree on factoring with recourse, the factor may claim repayment of the principal and interest of factoring financing or repurchase the creditor's rights of accounts receivable from the debtor of accounts receivable. Where the factor claims the creditor's rights of accounts receivable from the debtor of accounts receivable, if there is any surplus after deducting the principal and interest of factoring financing funds and related expenses, it shall return the surplus to the creditor of accounts receivable.
Interim Measures for the Administration of Factoring Business of Commercial Banks (No.5 of 20 14)
Article 10 Classification of factoring business:
(2) recourse factoring and non-recourse factoring
According to whether the commercial bank can transfer the accounts receivable to the creditor in the reverse direction when the debtor goes bankrupt, unreasonably breaches the contract or cannot pay the accounts receivable, and ask the creditor to buy back the accounts receivable or return the financing, it can be divided into recourse factoring and non-recourse factoring. Recourse factoring means that when the accounts receivable cannot be recovered from the debtor, the commercial bank can reverse the accounts receivable to the creditor and ask the creditor to buy back the accounts receivable or return the financing. Recourse factoring is also called repurchase factoring.
China Banking Factoring Code (Yin Xie Fa [20 16] 127No.)
Article 6 Classification of factoring business:
According to whether the bank can reverse transfer the accounts receivable to the creditor or ask the creditor to buy back the accounts receivable or return the financing when the debtor goes bankrupt, it can be divided into recourse factoring and non-recourse factoring. Recourse factoring means that when the accounts receivable cannot be recovered from the debtor, the bank can transfer the accounts receivable to the creditor in reverse, or ask the creditor to buy back the accounts receivable or return the financing. Recourse factoring is also called repurchase factoring.
Summary of the Judicial Committee of Tianjin Higher People's Court on Several Issues Concerning the Trial of Factoring Contract Disputes (I) (No.251[2065438])
Recourse factoring: refers to the fact that the factor does not undertake the obligation to approve the credit line and provide bad debt guarantee for the debtor, but only provides other financial services including financing. No matter why the accounts receivable cannot be recovered, the factor has the right to recover the paid financing money from the creditor and refuse to pay the unpaid balance, or ask the creditor to buy back the accounts receivable.
Tianjin Branch of the People's Bank of China actively supports opening to the outside world and accelerates the development of open economy (April 2004 15)
Article 14 Individual and private small and medium-sized enterprises with good market prospects, stable sales channels and high reputation of payers, especially enterprises that provide supporting products for large enterprises, may try factoring business of financing pledge or repurchase of accounts receivable.
The court's decision revolves around the focus of the above dispute. Chongqing High Court made the following statement in the "We think" part of the civil judgment of the second instance:
We believe that the factoring company claims the creditor's rights of accounts receivable from the debtor of accounts receivable, and after deducting the principal and interest of factoring financing and related expenses, the rest will be returned to the creditor of accounts receivable. In this case, Jinke Factoring Company and Toarey Yang Company reached an agreement on factoring with recourse. Jinke Factoring Company can choose Toarey Yang Company to claim the creditor's rights of accounts receivable, or claim the creditor's rights of accounts receivable from Juneng Company. Therefore, Jinke Factoring Company can claim the creditor's rights of accounts receivable from Juneng Company regardless of whether Toarey Yang Company has repaid all the factoring financing funds, and then settle with Toarey Yang Company. The energy gathering company only needs to pay off the debt once, which does not increase the responsibility or cause unfairness. Juneng Company cannot exempt itself from the corresponding repayment responsibility on this ground.
It should be pointed out that Chongqing No.1 Intermediate People's Court's discussion on this controversial issue in the "We think" part of the first-instance civil judgment is also quite wonderful, as follows:
In the factoring contract, when the buyer fails to pay the accounts receivable in full before the maturity date of factoring financing, the factor exercises the right of recourse against the seller, asking the seller to buy back the accounts receivable or asking the buyer to pay off the debts. What is the relationship between the two and whether they can be advocated at the same time is not stipulated in the current law. The relevant agreement in the factoring financing service contract No.20 15 (Commercial Insurance) 00 15 signed by Jinke Factoring Company and Toarey Yang Company is "If the buyer fails to pay the relevant accounts receivable in full before the maturity date of factoring financing for any reason, the factor has the right to exercise the right of recourse against the seller and ask the seller to buy back the above-mentioned unexpired accounts receivable and pay the corresponding payment within the specified time. If the seller fails to complete it within the time specified by the factor, the factor shall transfer the corresponding accounts receivable to the seller after the seller has fully fulfilled the above-mentioned repurchase and payment obligations. " Accordingly, there is no clear agreement in the contract. However, according to the above agreement, it is the right but not the obligation of the factor to ask the seller to buy back, and the agreement does not rule out that the factor has the right to ask for buy back and claim accounts receivable at the same time, as long as the two parties finally settle the accounts according to the agreement and make corresponding turns. At the same time, the second paragraph of Article 80 of the Contract Law stipulates that "the notice of the creditor's transfer of rights shall not be revoked, except with the consent of the transferee". Accordingly, Juneng Company argued in court that Jinke Factoring Company could only choose between requesting Toarey Yang Company to buy back its creditor's rights and requesting Juneng Company to perform its debts. Now, Toarey Yang Company repays the principal, and Jinke Factoring Company declares its creditor's rights to the manager of Yangtong Company, which shows that Jinke Factoring Company advocates repurchase and has no right to claim creditor's rights from it, lacking sufficient contractual or legal basis, and the court of first instance will not support it. In this case, in view of the fact that all parties have confirmed that Juneng Company has never fulfilled its obligation to pay the project funds, and Toarey Yang Company has clearly agreed that Jinke Factoring Company claims accounts receivable, it has separately settled the principal and interest of factoring financing with Jinke Factoring Company. The above opinions of Toarey Yang Company are in line with the contract provisions of both parties, and do not violate the legal provisions, nor harm the rights and interests of Giant Energy Company. Therefore, it is not necessary to review and determine the factoring financing contract No.20 16 (Commercial Insurance) 0029 signed between Jinke Factoring Company and Yimei Electric Company, and whether Toarey Yang Company has offset the financing amount owed by Jinke Factoring Company by 30 million yuan. To sum up, Jinke Factoring Company sued Juneng Company for the payment of 10000 yuan, as evidenced by the relevant provisions in the Factoring Financing Service Contract, the Confirmation of Accounts Receivable Transfer and the confirmation of Toarey Yang Company in court.
The source of the case is Chongqing Jinke Commercial Factoring Co., Ltd., Chongqing Juneng Construction (Group) Co., Ltd. and Chongqing Toarey Yang Construction Engineering Co., Ltd. [Chongqing Higher People's Court (20 18) Yu Minzhong No.413].
On the basis of searching a large number of similar cases, Lawyer Ting Yun summarized the relevant referee rules as follows for readers' reference:
1. According to the agreement in the factoring contract, the factor can claim the repayment of factoring financing money from the creditor and debtor of accounts receivable in the same case.
Case 1: The civil ruling on retrial of factoring contract disputes between Zhenjiang New District Sub-branch of Industrial and Commercial Bank of China and Suzhou China Railway Ye Jia Co., Ltd. and Jiangsu Liang Ming Road and Bridge Equipment Co., Ltd. [the Supreme People's Court (20 17) Supreme People's ApplicationNo. 1222] holds that in this case, Zhenjiang New District Sub-branch of Industrial and Commercial Bank of China signed a domestic factoring business contract with recourse. Recourse factoring means that Guangming Company transfers its accounts receivable arising from selling goods or providing services to buyers or other reasons to Zhenjiang New District Branch of ICBC, and Zhenjiang New District Branch of ICBC provides accounts receivable financing and related domestic factoring services to Guangming Company. If the buyer fails to pay off the accounts receivable in full within the agreed time limit, Zhenjiang New District Sub-branch of ICBC has the right to recover the outstanding financing funds from Guangming Company according to this contract. Due to the expiration of the financing period agreed in the contract, China Railway Company failed to pay the accounts receivable involved to Guangming Company's factoring account in Zhenjiang New District Branch of ICBC, and Guangming Company also failed to repay the loan principal and interest. Therefore, according to the agreement in the domestic factoring contract that Guangming Company transfers the creditor's rights and related rights of the accounts receivable involved to Zhenjiang New District Sub-branch of China Industrial and Commercial Bank, if China Railway Company fails to pay the accounts receivable in full within the agreed time limit, Zhenjiang New District Sub-branch of China Industrial and Commercial Bank has the right to claim the outstanding financing amount from Guangming Company according to the contract. There is a contractual basis for requesting China Railway Company to pay the loan principal and interest within the credit transfer limit in this case and Guangming Company to repay the loan principal and interest in this case.
2. If the debtor fails to pay the factoring financing amount and interest on schedule, it may, within the scope of its civil liability, promise to repay the financing amount to the factor according to the responsibility order of the debtor, creditor and guarantor of accounts receivable.
Case 2: Civil ruling on retrial of loan contract dispute between China Huarong Asset Management Co., Ltd. Henan Branch and Qingdao Free Trade Zone Hua Le International Trade Company, Henan Tianhui Energy Development Co., Ltd. and Century Golden Eagle Energy Holdings Co., Ltd. [the Supreme People's Court (20 18)No.192 of the Supreme People's Republic of China] holds that after Tianhui Company and Hua Le Company signed the Confirmation of Assignment of Creditor's Rights of Accounts Receivable, Golden Eagle Company enjoys the receivables. If Tianhui Company, Hua Le Company and Golden Eagle Company fail to pay the above financing and interest on schedule, Tianhui Company and Hua Le Company shall pay the corresponding discounted financing and interest to China Bank New District Branch. Regarding the debt sequence and scope of each debtor, as Tianhui Company and Hua Le Company are the payers of accounts receivable, they should first assume the repayment responsibility for transferring part of accounts receivable to China Bank New District Sub-branch; If the relevant funds cannot be paid off, Golden Eagle Company shall continue to bear the supplementary payment responsibility to the Bank of China New District Sub-branch; Jingcheng Company,,, and Chen are jointly and severally liable for the debts of Golden Eagle Company. Although the judgment of first instance is correct to deal with the disputes of all parties in this case together, our court has corrected the improper determination of the responsibility order and scope of all debtors.
Iii. Right of recourse The factor has the right to demand the debtor of the basic contract to bear the responsibility of paying off the debts, and also has the right to recover from the assignor of the basic contract creditor's rights, but the scope of the creditor's rights against the debtor of the basic contract should be limited to the scope of the rights that can be claimed from the assignor of the basic contract creditor's rights.
Case 3: Civil ruling on retrial of disputes over factoring contracts between China Construction Bank Co., Ltd. Shanghai Second Sub-branch and Zhongsha Construction Group Co., Ltd. and Shanghai Wanglin Trading Co., Ltd. [the Supreme People's Court (20 19) the Supreme People's Court No.2004]. 15 18] thinks that the legal nature of the contract of assignment of creditor's rights included in the factoring business with recourse is not a simple assignment of creditor's rights. However, it should be regarded as an indirect payment contract with the function of guaranteeing the performance of debts, and it does not have the effect of eliminating the original debts. Only when the new debts are fulfilled and the original creditor's rights are realized will the original debts be eliminated at the same time. Accordingly, in the case that the creditor's rights of the second branch of CCB are not paid off, the second branch of CCB, the factor, not only has the right to demand the debtor of the basic contract, Zhongxia Company, to pay off the debts, but also has the right to recover from the transferor of the creditor's rights of the basic contract, Wang Lin Company. The second branch of CCB does not bear the commercial risk that accounts receivable cannot be recovered. In order to pay off the debts owed by Wang Lin Company, it accepts the creditor's rights of Wang Lin Company to Zhongxia Company. Therefore, the court of second instance limited the right that the second branch of CCB can claim from Zhongxia Company in this case to the right that the second branch of CCB can claim from Wang Lin Company, which did not exceed the claims of the parties. In this case, the creditor's rights of China Construction Bank No.2 Branch to Zhongxia Company were not actually paid off. In order to avoid repeated repayment of the same creditor's right, the court of second instance ruled that either Zhongxia Company, the company or the guarantor Dongguan Company, Li was exempted from the repayment obligation of the other party, and the determination was correct, which did not harm the substantive rights and interests of Zhongxia Company.