保理合同中應收賬款多重轉讓的優先順序──以《民法典》第768條為中心

Priority of Multiple Assignments of Accounts Receivable in Factoring Contracts

《民法典》保理合同章規定了保理合同、擔保合意和應收賬款債權轉讓三部分的內容。無追索權的保理本質上是債權買賣合同結合應收賬款債權轉讓，買賣合同是債權轉讓的原因行為。有追索權的保理本質上是借款合同結合擔保合意和債權讓與擔保。擔保合意構成債權讓與擔保的原因行為，並决定債權讓與擔保中的清算義務。《民法典》第768條規定了同一應收賬款訂立多個保理合同的數個保理人之間的優先順序，確立了登記優先、通知次優的規則。在未登記也未通知時，引入了按比例分割債權的規則。儘管我國學說對於債權分割規則批評較多，但是這一規則的價值基礎在於債權人平等原則。在債務給付可分的情况下，多數債權受讓人之間形成按份債權關係；在債務給付不可分的情况下，多數債權受讓人之間形成債權準共有。

The chapter of factoring contract in Civil Code of China includes three parts: factoring contract, guarantee consensus and assignment of accounts receivable. The essence of non-recourse factoring is the contract for the sale of credit combined with assignment of accounts receivable, and the sale contract is the cause of the assignment of credit. Correspondingly, the essence of recourse factoring is the loan contract combined with guarantee consensus and fiduciary transfer of title. Meanwhile, the guarantee consensus constitutes the reason of the fiduciary transfer of title and determines the liquidation obligation in the fiduciary transfer of title. Article 768 of the Civil Code stipulates the priority order among several factors who sign contracts for the same accounts receivable, and establishes the rule of registration priority and notification of second- best. However, when they are not registered or notified, the rule dividing credit pro rata is applied. Although there are many criticisms of the rule in our country, the value of that rule bases on the principle of equality of credit. In the case that the credit is divisible, their relationship is several co-ownership if there are many assignees of the credit. Comparatively, their relationship is quasi- common ownership in the case that the credit is not divisible.