Page 19 - 2021 Policy Watch

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The American Chamber of Commerce in South China

If the people?? court fails to make the ruling mentioned 瑙??锛????浼??涓?????????????????瀹??
in the preceding paragraph within one year as of the 浠??瑙??锛?????浼??娓?????寰???插?浼?储浜?37??
date of receipt of application for execution, the statute
of limitation shall start as of the date of expiration of ???娉?????涔??涓???″????娉???????涓??
one year from the date of receipt of the application for ???瑙???虹?涓???ㄩ?缁???拌?瀹??浼???℃?
execution by the people?? court, unless the guarantor 琛???????浼???″?瀹??浠ヤ??村???负???锛??
has evidence to prove that the debtor still has property ?????害瀹?负渚??锛?????浼???″????搴????
for execution.??30 ?ㄤ????浜哄????琛??涓??纭??濮?????浜烘?琛?
???浜???跺害锛?????澧??浼?汉寮???跺害锛??琛?
e. Factoring Contract ???浜?????浼?汉璁や负?朵????浜烘?琛??褰????
?芥?瀹冲?浼?????锛??浠ユ??哄?璁???朵????浜?
A factoring contract is a contract where creditors of ac- 搴?????璇ラ」???浜???ц????煎?娉ㄦ????锛???
counts receivable transfer accounts receivable to a fac- 寮?????????朵????浜烘?琛???蜂?琛?负琛ㄧず??
tor who will provide financial support and services such 瀵癸????????朵????浜虹??ц?浜?」涓?弧???浜?
as management of receivables, collection?? services, and ???搴?????璇ラ」浜?????琛???卞?浣??浼?汉涓?
a payment guarantee for accounts receivable. It is a de- ?村?瀹????璁??搴?????瀹?????浼??涓?????
vice for company finance. The chapter of contract in 浜??涔??38锛?????娉??????惰??存?灞??????
the Civil Code has a special chapter for factoring con- ???浼???
tracts, including the concept, contents and forms of a
factoring contract, factoring for fabricated accounts re- ???娉?????涔??涓??浜???╂鼎???????????
ceivable, notice of assignment by a factor, recourse fac- ???瀹??绗???句?????″?哄??挎????瀹??绗??
toring, non-recourse factoring and multiple factoring. ?句?????″?浼?储浜т唤棰?浆璁╃?瑙??锛??涔??涓?
????″?烘?浜鸿?浣夸唬浣????????瀹?????瀵瑰?
The Civil Code provides that where an accounts receiv- ???浼??涓?????涓???°???涓????????涓??
able creditor and debtor fabricate accounts receivable 涔?????????″?绗??????★?灞??灏??浼??涓?
as the subject of assignment and enter into a factoring ???搴??瀹??灞???????浼???
contract with a factor, the accounts receivable debtor
may not claim against the factor on the grounds that ????????娉??????苟娌℃?瑙????????灞?弧濡?
the accounts receivable does not exist, unless the factor 浣?????????浼??涓???????????瑙?????浼?
knows such accounts receivable are fabricated31. The ?????害瀹??浼?????锛??浼?汉?ㄤ?缁??浼??涓?
legal basis of this provision is that ??nvalidity through 浜???ц????涓??褰卞?????典?锛??浠ラ??浼??浣?
conspiracy and fabrication shall not be an excuse 搴?????涓???ラ????朵????浜恒???????娉????
against a bona fide third party??; however, it is notice- ?板?瑙????????娌℃?绾??????害瀹????‘???
able that the result of conspiracy and fabrication be- 瑙?负涓?????浼??骞惰?浜??浼?汉瑙ｉ???????
tween creditor of the accounts receivable and debtors ?╋?浣??瑙ｉ?涓?????浼?????锛??褰???????
must show that their act has fabricated the rights that ?????????朵????浜?39??腑?姐???娉?????瑙?
do not exist, and the factor has acted in good faith and 瀹?????澹??烘??搞?????婀惧??虹????娉????绫?
has not committed wrongdoing. 浼笺??

If the factor knows that the basic contract is a false con- 37 ???浼??涓?????浜??涓??＄?涓?娆?
tract, the act of financing rendered by the factor for 38 ???浼??涓?????浜??涔??瑙?????浼?汉????ц???
the creditor will be defined as borrowing. In this case, 浼???＄?锛??琛???″?浼?汉??互瀵瑰?浠??浼?汉?ц????
the factor may only require the creditor to refund the ?℃??哄?璁?????哄?璁??锛??褰?????椤逛??＄??ц???
capital and pay for the interest, while it has no right to 濡?????浜??锛???ф?娉??涓???¤?瀹???哄?瀹????濮?
claim against the debtor. ???琛??浼???＄????浜轰???????????????浣??
浼?汉???瀹??琛???＄?锛??浠??浼?汉??互?冲??ら?璇ュ?
30 Interpretation of the Supreme People?? Court on the Application ??????
of the Guarantee System in the Civil Code of the People?? Republic of 39???娉?????涔??涓?????
China, Article 28
31 Civil Code, Article 763 19

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