【作者】 徐昊；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 资产证券化是近40年来世界金融领域最重要和发展最迅速的金融工具。资产证券化,是指原始权益人将缺乏流动性、但具有产生可预测现金流量能力的资产或资产组合出售或者信托给特殊目的实体,创立一种以上述资产产生的现金流为支撑的证券或者权利凭证,在资本市场上出售变现的一种结构性融资手段。资产证券化作为一种在国外较为成熟的金融工具,其理论和实践经验对我国当前资本市场的发展具有相当重要的借鉴意义。本文的目的是通过对资产证券化的运作过程及其基本法律制度作一个比较简单的介绍和分析来揭示资产证券化的一些关键法律结构,进而为我国目前存在的资产证券化的法律障碍和法律冲突做出分析阐述,提出一些法律问题和法律规制建议。更多还原

【Abstract】 Asset securitization is a new financing technique which comes out from the U. S. A. in recent years. Since the 1990s, asset securitization has been more and more popular in the international capital market. For adapting for the international economic circumstance as soon as possible and using the new financing technique to serve our market economy, it is necessary to discuss about the legal issue relating to asset securitization. Because our researching on asset securitization is not much and the practice of asset securitization is in trial, so there are some legal issues we haven’t paid much attention to and not getting much researched on. This text is opening out some important asset securitization structures and mechanisms by briefly introducing and analyzing asset securitization operating process and legal system. The object of this text is to putting forward some legal issues and regulation improvements. The text includes four chapters.The first chapter introduces the concept、classifying and value of asset securitization. Asset securitization is related to a process. In the process, the asset lack of liquidity but producing steady anticipated cash flow could be turned into the securities which can circulate freely on the financial market by means of certain structure arrangement and recombination of the risks and profits. As a new financial creature the substance of asset securitization is the credit of financing mode transferring from the corporate to the specific asset. In another word it separates the asset that can produce anticipated cash flow from other assets to set up a financing entity and being sold to investors to make the asset capable of liquidity. In a word the asset securitization is a technical arrangement that to releasing some earning of the asset to make the asset capable of liquidity by securitization. Classifying from the asset character the asset securitization includes substantial asset securitization, debit asset securitization, security asset securitization and current asset securitization. Classifying from the SPV form the asset securitization includes special purpose company asset securitization and special purpose trust asset securitization. As for asset securitization can be effectively converted to the market risk from sole credit risk and reduce the possibility of cumulative risk, therefore, to defuse financial risks it has an important role to play. Asset Securitization for the financing of enterprises has opened up new channels, and to solve long-term assets and short-term bank liabilities contradictions providing ideas. At the same time, solving the liquidity of assets into securities of surplus to eliminate the impact of inflation provides a new path.The second chapter introduces the operation of asset securitization process. Asset Securitization first step is to identify the assets or assets pool needing securitization. Securitization of assets has an important feature that expected to generate stable cash flow. Second, it should establish special purpose vehicle. SPV is specially designed for asset securitization. It is the key factor and basic condition for asset securitization to be successful. SPV can be normally taken in the form of trust and company. SPV is the most important part of bankruptcy risk remoteness mechanism and its purpose is to maximize the effect of issuer bankruptcy for asset securitization. Again, it is also necessary to appraise and enhance the credit class of the asset securitization. Credit enhancement for the securities issued by SPV is to gain a higher asset rating, thereby reducing financing costs and attracting investors. Because the asset securitization evaluation is a very complex project so that common investors can not afford to carry out .Their investment decision-making is mainly relying on the evaluation of the credit evaluation agencies. Only by gaining high credit ratings to issue securities, the issuer’s financing costs will be low. Finally, when the above-mentioned work is completed, the assets can support the securities and the so-called asset supporting is using assets to guaranty. Securities issued mainly includes bonds, preferred stock and trust beneficiary certificate, which rely on the legal nature of SPV and the actual situation. SPV receives the earning of securities from security consignee then pay the price to the originator in accordance with the provisions of the purchase price in the contract.The third chapter mainly analysis and interpret the basic legal system. First basing on the characteristics of the asset needing securitization, that is generating stable cash flow, to specifically describe the what asset is according with the requirements and how to arrange the assets structure to accord with the requirements. Then we concentrate on the bankruptcy remoteness mechanism. The construction of the bankruptcy remoteness mechanism is the key point of the asset securitization structure which relate to the success of the asset securitization and is the most fundamental part. The bankruptcy remoteness mechanism is to transfer the asset to another special purpose entity using the principle of limited liability of company or the independency of trust asset. Because the risk owed to the investor by SPV is limited within the value of the asset so the originator bankruptcy risk can not affect the investor. In legal terms, there two key points to solve in the construction of the bankruptcy remoteness mechanism: one is using what form the asset transferred that can really remote the bankruptcy risk of the originator, in this section we mainly interpret the“true sale”issue; another is what structure should SPV take to remote the bankruptcy risk of the originator and SPV itself. Because of the importance of SPV we specially interpret the SPV legal quality and separately analysis the different SPV forms and their relationship with the originator.The fourth chapter discusses some legal regulation issues about asset securitization of china. First we introduce the current status and legislation status of national asset securitization practice. Current legislation of asset securitization is only limited to the level of departmental rules or even just the form of the notification and no asset securitization legislation raise to the level of basic laws. There is urgent need for the development of special unification of the asset securitization legislation and legal regulation. Secondly, we propose the legal consideration and regulation of asset transferring which is mainly about the capability of future creditor’s rights securitization and conflict between the provision on the effectiveness of creditor’s rights transferring in the“contract law”and the asset securitization practice. I think that our creditor’s rights transferring of the asset securitization should be allowed to the one that have certain contractual base; assets in the form of the creditor’s rights transferring should consider adopting the registration system as a notification method. In relation to the form of our SPV, I reached a conclusion from the analysis of the existing legal system: our country is more suitable for the establishment of a trust form of SPV and a company form of the SPV has more legal obstacles. In the absence of specific legislation of asset securitization, the company form SPV has more conflicts with the aspects of registered capital and securities issued such problems with the existing "Company Law" "The Securities Law" and the modification of existing laws is not appropriate. The trust form SPV has less legal obstacles and this is why our relevant provisions recognize the trust form SPV. In the last article I put forward my own opinion about the recent popular views that support the bank’s bad credit asset securitization: Since our asset securitization legal system is not yet perfect, it is not appropriate for bank’s bad credit assets securitization unless we adopt the dividing security class method with strict legal regulation.更多还原