在《民法典》第763条对虚构应收账款的规定中，涉及三方主体和两重法律关系，基础合同与保理合同相对独立非主从关系。基础合同因债权人和债务人之间通谋虚伪表示无效，并不影响保理合同的效力。债权人与保理人订立保理合同为负担行为，债权人对应收账款的转让为处分行为，一般情况负担行为与处分行为同时生效。在让与未特定化的将有应收账款等情形下，负担行为生效之时，并不发生应收账款债权让与的法律效果。虚构应收账款为债权人和债务人的双方行为，在债权人单方虚构中，债务人对其容忍行为是否应承担责任，需根据防免成本讨论。若债务人防免成本明显较低，则应向承担；若权利外观存在非基于债务人的意思且预防成本高，则不应承担责任。第763条属积极信赖保护，应符合外观主义理论要求：虚构的应收账款具有权利外观、保理人对权利外观知情且签订保理合同、债务人具有可归责性，同时满足才可以要求债务人承担清偿应收账款的责任。第763条将债务人的抗辩事由限定在保理人明知的场合，并非立法机关的疏漏。保理人作为商事主体，保理行业规范、保理企业发展以及对交易相对人的负责均要求保理人在订立合同前进行调查核实；市场监管对保理准入性条件有严格限制，对其审核义务提出了较高要求，保理人主观非明知状态亦要求符合一定标准。若再对保理人附加更多义务，会使保理行业失去“简便灵活的融资方式”的特征，本条是根据保理业务的实质反复考量的，并未对保理人过度倾斜保护。虚构应收账款中保理人可以基于第763条，行使保理合同付款请求权，请求按合同约定履行债务，在有追索权保理中，一般不认为债权人与债务人承担连带责任；可以依据第148条，主张债权人与债务人实施欺诈行为，请求撤销合同，并要求返还财产、赔偿损失；可以基于第1164条或1168条提起侵权之诉，要求赔偿其损失，在无追索权保理中，即使发生真保理效果，在债务人无清偿能力时保理人无法获得救济，此时适用侵权责任的规定存在实益。保理人享有复数请求权，但不得同时提起违约之诉和侵权之诉，也不可就一笔应收账款重复受偿。第763条事实上构成了适用于债权转让的一般性规则，应规定在合同编通则中，并且在权利外观上的要求为：“转让已经登记或经债务人书面承认的债权，不得对抗善意第三人。”本条亦是通谋虚伪意思表示无效不得对抗善意相对人规则的体现，在权利变动实行意思表示为主的领域可以适用，但在实行形式主义权利变动模式的制度中不应适用，该规则无需在总则规定。

The purpose of this paper of the factoring contract has been transformed from an abominate contract to a typical contract, which provides a clear legal basis for judicial decision. However, the Civil Code is too concise in its content, and the judicial practice still needs to be interpreted with the substance and transaction characteristics of factoring contracts to make them have strong normative applicability. In the provisions of Article 763 of the Civil Code on fictitious receivables, three subjects and two legal relationships are involved, and the underlying transaction contract and the factoring contract are relatively independent and not master-slave relationships. The fact that the underlying transaction contract is invalid due to the conspiracy of misrepresentation between the creditor and the debtor does not affect the validity of the factoring contract as a result. The factoring contract between the creditor and the factor is an act of burden, and the transfer of the receivables by the creditor is an act of disposition, and generally the act of burden and the act of disposition are effective at the same time.The fictitious accounts receivable should be the act of both the creditor and the debtor. In the unilateral fictitious of the creditor, whether the debtor should be responsible for its tolerated act is to be discussed according to the debtor's cost of prevention and exemption. If the debtor's cost of prevention is significantly lower than that of the factor, it should be liable to the factor. If the existence of the appearance of rights is not based on the debtor's intention and the debtor's cost of prevention is higher, the debtor should not be liable. The provisions of Article 763 belong to the positive reliance protection for the factor, and the constituent elements should meet the requirements of the appearance doctrine: the fictitious receivables have the appearance of rights, the factor has knowledge of the appearance of rights and enters into a factoring contract with the creditor based on the appearance of rights, and the debtor has immutability, and the above three conditions need to be satisfied before the debtor can be held liable to the factor for the settlement of the receivables.It is not an oversight of the legislature that Article 763 limits the debtor's defenses to the occasions when the factor is aware of them. Requiring more additional obligations on the factor will cause the factoring industry to lose its characteristic of "easy and flexible financing". The market regulation strictly restricts the access conditions of the factoring industry and imposes higher requirements on the factoring obligations and business capabilities, which are repeatedly considered according to the substance of the factoring business and are not overly tilted and protected.There are various ways to protect the factor in the fictitious receivables. The factor can exercise the right to request for payment under the factoring contract based on the provisions of Article 763, and request the debtor to perform the debt as agreed in the factoring contract, and in the factoring contract with recourse, the creditor is generally not considered to be jointly and severally liable with the debtor, except for those explicitly agreed in the factoring contract; it can claim the creditor and the The factor may request the court or arbitration body to rescind the factoring contract and demand the creditor and the debtor to return the property and compensate for the loss based on the provisions of Article 1164 or 1168, and may file a tort suit to demand the creditor and the debtor to compensate for the loss based on the provisions of Article 1164 or 1168. Factors have the right to file plural claims, and can file contractual claims or tort claims, both of which are not incompatible with each other.Article 763 in fact constitutes a general rule applicable to the assignment of all claims, which should be stipulated in the general rules of contract codification, and in the appearance of rights requirement as: "The assignment of claims that have been registered or acknowledged in writing by the debtor shall not be against boa aide third parties." This article is also the specific embodiment of the general conspiracy to invalidate false meanings shall not be opposed to the boa aide counter party, the rule can be applied in the field of the change of rights to implement the main expression of meaning, but should not be applied in the system to implement the formalism mode of change of rights, should not be general requirement of false meanings shall not be opposed to the rule, so the rule need not be provided in the general rules.