国内保理合同性质认定及司法效果考证

我国法学理论与立法对国内保理合同定性不明,导致国内保理合同实践中纠纷频发,各地法院对该类案件的审理思路亦不尽相同。理论上关于保理合同的性质认识,有委托代理说、债权转让说、让与担保合同说以及金融借款说等学说。其中,债权转让说最符合国内保理合同的本质特点,无论有无追索权,保理合同在本质上均属于债权转让。有追索权的保理合同中的追索权属于当事人的特别约定,为附条件的债权转让。保理合同债权转让说可以达到正确确定案件案由与表述判决主文的司法效果。

The Cognizance of the Nature and Judicial Effect of Domestic Factoring Contracts

In China both theory and legislation are not clear about the nature of domestic factoring contracts, which leads to frequent disputes and various judicial approaches in different local courts. In theory, there are some views about the nature of factoring contracts, such as principal-agent theory, credit assignment theory, assignment guarantee contract theory and financial borrowing theory. The theory of credit assignment is most in line with the essential characteristics of factoring contracts in China. That is to say, a factoring contract is a credit assignment in nature, whether or not the recourse exists. The recourse should be specifically agreed by the relevant parties and is a conditional credit assignment. Credit assignment of factoring contracts can correctly determine the cause of the case and the expression of the main text of the judgment.