论禁止让与条款之限制与立法改进 (The Restriction on Anti-Assignment Clause and the Promotion of Legislation )

Chinese Abstract: 摘要： 企业融资难是世界各国所共同面临的问题，而民商事立法也应当对此予以回应。因我国高度承认禁止让与条款的效力，导致应收账款质押及保理等融资途径受限，合同债权的融资机能严重降低。在支付成本下降、融资成本上升的背景下，在债权让与领域应当对债权人的利益加以平衡。参考域外立法，对禁止让与条款之效力加以限制可谓大势所趋，而这也符合国际条约及新近示范立法的指引精神。在我国，只有对金钱给付债权的让与设立特殊规范，限制禁止让与条款的对抗效力以及设定违约赔偿限额，才能在平衡交易各方利益的基础上，提高合同债权的可让与性，降低企业融资成本。 English Abstract: The financing of the enterprises is a world-wide problem and it needs the responses of the civil and commercial legislation. Because of the statutory admission of China, there is too much burden on the receivables pledge and factoring and the financial function of the right under contracts has already been severely limited. Since the payment cost has been dropped and the financing cost is increasing, the protection of creditors should be reinforced. All over the world, limiting the anti-assignment clause is so popular and some international conventions and recent model laws also call for that. In China, we should offer the specific rules for the assignment of account and the anti-assignment clause ought to be ineffective against any third party. And only in this way can we advance the assignability of receivables and lower the financial cost of enterprises.