云南省昆明市人民政府


昆明市人民政府公告(第26号)

　　《昆明市打击非法客运车辆经营行为规定》已经2008年8月5日昆明市人民政府第92次常务会议讨论通过，现予公布，自2008年10月1日起施行。

　　二00八年九月四日

　　第一条 为维护良好的客运经营秩序，进一步打击非法客运车辆经营行为，保护广大乘客和经营者的合法权益，根据有关法律、法规和《昆明市人大常委会关于打击非法客运车辆经营行为的决议》，结合本市实际，制定本规定。

　　第二条 凡在本市未取得客运经营许可证从事客运经营行为，或者伪造客运经营许可证从事客运经营行为，或者超过客运经营许可范围从事客运经营行为的，一律属于非法客运经营行为。

　　第三条 对非法客运的行为人，由公安交通管理部门吊销机动车驾驶证及非法客运车辆的相关证照。

　　对非法营运的客运车辆，由客运管理部门或者相关行政管理部门予以没收。

　　非法客运车辆残值收入及没收的非法所得上缴同级财政。

　　第四条 对妨碍行政执法人员执行公务或者暴力抗法的，依照《中华人民共和国治安管理处罚法》予以处罚。

　　第五条 对有组织的非法营运团伙，依法从严查处，构成犯罪的，依法追究刑事责任。

　　第六条 对举报非法营运行为，经查证属实的，由客运管理部门或者相关行政管理部门给予举报人人民币1000元至2000元的现金奖励。

　　第七条 各县（市）区人民政府应当按照属地管理原则，组织有关部门严厉打击本辖区内非法客运车辆经营行为。

　　市城市管理局应当会同市公安、交通、市政公用、旅游等有关部门加强对各县（市）区打击非法客运车辆经营行为工作的统一协调、业务指导、督促检查、督办考核等工作。县（市）区人民政府和市级相关部门应当建立打击非法客运车辆经营行为的联动、协调机制，实行动态跟踪管理，形成长效管理机制。

　　第八条 打击非法客运车辆经营行为工作纳入市人民政府对各县（市）区人民政府和市级相关部门的工作目标考核，各县（市）区人民政府和市级相关部门的行政主要领导是打击非法客运车辆经营行为工作的第一责任人。对打击非法客运车辆经营行为措施有力、辖区内不存在非法营运现象的，予以奖励；对打击非法客运车辆经营行为工作措施不力、导致辖区内仍然存在非法营运现象的县（市）区，对分管领导以及城管、交通、公安等部门的领导进行行政问责。

　　第九条 对在打击非法客运车辆经营行为工作中滥用职权、徇私舞弊、玩忽职守、充当非法客运"保护伞"等违法、违纪行为的，纪检监察部门应当严肃查处，依法追究有关责任人的责任；构成犯罪的，依法追究刑事责任。

　　第十条 本规定自2008年10月1日起施行。

Expansion of Applicable Sphere: A way to Uniformity
——Compare and Contrast between UNIDROIT and UNCITRAL Conventions
By Dongsheng Lu, Chen Yan

I. Introduction

Financing is paramount for the promotion of commerce. It has been noted that “in developed countries the bulk of corporate wealth is locked up in receivables”. As the economy develops, this wealth increasing is “unlocked by transferring receivables across national borders”. With the prompt and great increases in international trade, receivables financing now plays a more and more important role. Yet under the law of many countries, certain forms of receivables financing are still not recognized. Even transactions are involved in countries where the form of receivables financing is permitted, determining which law governs will be difficult. The disparity among laws of different jurisdiction increases uncertainty in transactions, thus constitutes obstacles to the development of assignments of receivables. To remove such obstacles arising from the uncertainty existing in various legal systems and promote the development of receivables financing cross-boarder, a set of uniform rules in this field is required. The international community has made great efforts in adopting uniform laws. Among those efforts, the United Nations Commission on International Trade Law (UNCITRAL) drafted, on 12 December, 2001, “United Nations Convention on the Assignment of Receivables in International Trade” (hereinafter referred to as the “UNCITRAL Convention”), with its aim to “establish principles and to adopt rules relating to the assignment of receivables that would create certainty and transparency and promote the modernization of the law relating to assignments of receivables”. UNCITRAL is not the first international organization attempting to resolve the problems associated with receivables. As early as in May 1988, the International Institute for the Unification of Private Law (UNIDROIT) has already adopted a convention known as the “UNIDROIT Convention on International Factoring” (hereinafter referred to as the “UNIDROIT Convention”).

When compare and contrast between the UNIDROIT Convention and the UNCITRAL Convention, one might see a lot of inconsistency in detailed regulations, e.g. sphere of application, relations between parties, priorities, and choice of law, etc. Given the limited space available in this article, the author may only focus on the difference in “sphere of application” of these two conventions, as sphere of application is perhaps the most fundamental issue of a convention.

The purpose of an international convention is to create uniformity in its covered matter, thus the broader a convention’s sphere of application is, the higher could uniformity reach. This article will try to make compare and contrast the sphere of application between the UNIDROIT Convention and the UNCITRAL Convention, illustrate the differences exist between these two conventions, and demonstrate the expansion of sphere of application in the UNCITRAL Convention and its progress on the way to uniformity.

II. Sphere of Application: Subject Matter

As its title indicates, the subject matter of the UNIDROIT Convention is of course international factoring. Article 1(1) says, “this Convention governs factoring contracts and assignments of receivables as described in this Chapter.”

For “factoring contract”, the UNIDROIT Convention provides the following 4 characteristics:

(1) purpose of the contract is to assign receivables;

(2) receivables to be assigned arises from contracts of sale of goods made between the supplier and its customers (debtors), other than those of sale of goods bought primarily for personal, family or household use;

(3) the factor is to perform at least two of the four functions: (i) finance for the supplier; (ii) maintenance of accounts (ledgering) relating to the receivables; (iii) collection of receivables; and (iv) protection against default in payment by debtors;

(4) notice of the assignment of the receivables is to be given to debtors.

As about “assignments of receivables as described in this Chapter”, article 2 (1) describes assignments of receivables as assignment of receivables pursuant to a factoring contract.

Factoring is just a subset of the receivables financing, and perhaps the oldest and most basic one. Besides factoring, receivables financing still entail the following forms,

(1) Forfeiting, similar to factoring, involves the purchase or discounting of documentary receivables (promissory notes, for example) without recourse to the party from whom the receivables are purchased;

(2) Refinancing, also known as secondary financing, involves the subsequent assignment of receivables. In its basic form, one bank or financier will assign to another bank its interest, with the potential for further assignment;

(3) Securitization, in which both marketable (for example, trade receivables) and non-marketable (consumer credit card receivables) asset cash flows are repackaged by a lender and transferred to a lender-controlled company, which will issue securities, sell and then use the proceeds to purchase the receivables;

(4) Project Finance, in which repayment of loans made by banks or financiers to project contractors for the financing of projects are secured through the future revenues of the project.

The first draft of the UNCITRAL Convention has stated to cover factoring, forfeiting, refinancing, securitization and project finance. Somehow, the working group decides that rather than emphasize the form in which the receivables appear, it would instead concentrate on the way in which the receivables might be transferred (contractual or non-contractual) and the purpose of the transaction (for financing or non-financing purposes). It decides the contractual receivables and assignment made to secure financing and other related services would be covered. The non-contractual receivables such as insurance and tort receivables, deposit bank accounts, or claims arising by operation of law seems are not within the ambits of the UNCITRAL convention.

III. Sphere of Application: Special Requirements

Both of the conventions contain a series of requirements. Only when those requirements are satisfied, could the convention be applied. The higher and stricter the requirements are, the smaller the chance to apply the convention is.

a) Internationality requirement

Both the two conventions indicate their sphere of application is of internationality requirement, but the same word in these two conventions has different legal meaning. The internationality requirement of UNIDROIT Convention is exclusively based upon the parties to the underlying contract, i.e. the contract of sale of goods (the supplier and the debtor) having their place of business in different countries. In other words, where the receivables arise from a contract of sale of goods between a supplier and a debtor whose places of business are in the same State, the UNIDROIT Convention could not apply, no matter the following assignment of receivables is to assignee in the same or different State. Thus leaving the international assignment of domestic receivables untouched. The problem, at its simplest, is twofold: first, inconsistency. For instance, in the case where a bulk assignment is made and where part of the receivables are domestic (supplier and debtor are in the same State) and part are international (supplier and debtor are in different State), if the supplier assigns the receivables to a party which is located in another State, the bulk assignment between the same supplier and the same assignee will be governed by two sets of laws and regulations: the portion of international receivables may be governed by the UNIDROIT Convention while the domestic one will be left to the jurisdiction of certain domestic law.

Secondly, leaving the international assignment of domestic receivables to the jurisdiction of various law systems of different States can make “commercial practice uncertain, time-consuming and expensive”. The assignee of receivables from a foreign State may not know which State’s law governs the transaction, and, if the law of the assignor’s State applies, the assignee’s rights would be subject to the vagaries of that foreign law. This no doubt would greatly impede the development of such transaction.