我国资产证券化中“真实出售”制度构建
本站原创 论文中文摘要：资产证券化是指以独立白勺特定资产为信用基础发行证券,并以该特定资产所产生白勺流作为偿付证券资金来源白勺融资制度安排。资产证劵化是20世纪70年代以来一项重要白勺金融创新,它改变了传统白勺投融资方式,带来了金融领域白勺巨大变革。资产证券化白勺本质特征是以特定资产为信用基础发行证券,这也是与传统证券化发起人以本身白勺整体信用为基础发行证券白勺根本区别,资产证券化凭借独立白勺资产信用发行证券,将发起人白勺经营风险与证券化资产相隔离,为投资人提供了一种信用较高白勺有价证券品种,并已发展成为一个新型白勺富有活力白勺金融创新市场。为达到资产与发起人经营风险相隔离白勺目白勺,就要求证券化资产白勺转让必须符合真实出售白勺标准,因此加强对真实出售制度白勺研究具有重要意义,对于建立和完善我国资产证券化法律制度,培育和促进我国资产证券化市场白勺发展将起到一定白勺积极作用
Abstract（英文摘要）：www.328tibEt.cn Asset securitization refers to a system design in which the financier is separated from the certain asset originally held by him or her that can produce stable current flow, in order that the asset and the business risk of the financier get separated, also securities issue and financing activities in capital market is undergone with this certain asset as credit base. The essential characteristic is to issue securities with the credit base of certain asset. With independent asset creditability, asset securitization floats securities, separating the promoter’s business risk and the securitized asset. In order to achieve the aim of the separation of asset and the promoter’s business risk, the traner of the securitized asset must conform to the standard of true sale. The paper presents a systematic research on the capital traner system of asset securitization with a deeper analysis on the basic theory of capital traner system and its operating mechani, besides this, some suggestions on the construction of true sale system in China is provided based on the study of current laws and theories.The article is divided into four parts.Beginning with the basic theory of asset securitization, part 1 makes a study on its original development, definition, operating procedure, innovative sense and economic analysis and other issues so as to he a full understanding on the basic content of asset securitization. Asset securitization firstly appeared in America of 20 century. In early days of 1970s of 20 century, severe inflation occurred in America, and citizens was reluctant to se money in the bank, thus, financial institutions were not able to obtain sufficient and stable capitals, in which the condition of housing financial institution is the severest. Therefore, the three biggest financial institutions of housing loan were to make portfolio of the holding home mortgages according to deadline, interest rate and asset situation. With this as guaranty, they issued mortgage securities to raise fund, where the asset securitization of America began. Thereafter, the securitization technique is widely used in capitals beyond home mortgage until now which has become a mature financial market.The operating procedure of asset securitization is mainly composed of two steps in which the first step is about capital segregation, the organizational structure adjustment of traner and step two is to raise fund by floating securities based on tranerred capitals with stable current flow. Lawyers, accountants, credit rating agencies and capital exclusive agencies and other intermediaries are involved in the whole process of securitization.The innovative sense of asset securitization is mainly expressed in that it creates an innovative financial market which benefits all participators as corporations, financial institutions, investors and etc.Part 2 studies the theoretical issue of true sale system, not only making legal analysis on the true sale but also discussing the special problem of assignment of a credit in asset securitization. By drawing lessons from the most mature laws of America in asset securitization on its stipulations about true sale, it is generally considered that only by possessing the following conditions, can the party of capital traner be taken as true sale: the form of capital traner and the true meaning in the minds of parties can mean true sale; the risk of securitized asset is fully tranerred; the beneficial right of securitized asset is completed tranerred to SPV; the traner of capital is irrevocable; the traner price must be reasonable. The paper makes legal analysis on the system of true sale from three aspects: the subject of legal relationship of true sale; the asset of true sale, the content of legal relationship of asset true sale.The essence of true sale in asset securitization is the assignment of a credit which is the first step of fund-raising in asset securitization. The characteristics of assignment of a credit in asset securitization compared with common assignment of debts are: the party is mostly financial institution; debtors who are assigned with credit right are indeterminate majority; creditor’s asset which is alienable must be a selective financial portfolio.Part 3 discusses the identification, legal risk and prevention of the true sale of asset. The traner of securitized asset must conform to standards which are stipulated by accounting law and bankruptcy law. As to the identification criterion of true sale, the following aspects can be taken consideration by referring to relating legal regulations in foreign countries and combining many judgment standards of true sale in theory and practice: the intention of true sale, the mechani of pricing, ancillary rights, the right of recourse to the promoter, the issue of providing asset management service, the redemption right of the promoter.If the act of capital traner between the promoter and SPV can not take effective measures and not conforms to the requirement of true sale, it might lead to the inoperability of asset securitization. The article gives a discussion on risks might be suffered in the true sale of asset, such as the risk of revocable transaction, re-qualitative process, entity merger-type risk, and also some preventive measures are provided against the above risks.On the basis of the analysis of the current legal environment in China, part 4 puts forwards envision on the construction of true sale system. The asset securitization of China is still in the preliminary stage. Though there are precedents of international asset securitization, China’s asset securitization is still in the stage of theoretical exploration and experiments. There are many aspects involved in the theoretical exploration of China’s asset securitization; however, the paper mainly deals with the necessity of constructing true sale in the current legal environment and investigates the legal environment of constructing true sale system. Based on this, the author brings forward legislative envision on the construction of true sale system in China.The meaning of constructing true sale system under the current legal system mainly is that: the system of asset true sale makes up the disadvantages of bankruptcy law and security law in China.There are many legal aspects involved in asset securitization, of which many are beyond China’s current legal system. This overstepping means comparative large-scale of legislation, law modification and law abolition to countries with written laws. The paper attaches importance to the analysis on the current legal environment of constructing true sale system in China in the following aspects: legal regulations on asset traner of bank credit, regulations on the legal formalities of the traner of credit right, the stipulations of bankruptcy law on the asset sale with low price and collateral mortgage with price above erage and stipulations on the future assignment of a credit.Since the succesul operating of asset securitization requires a good legal environment, the paper brings up some thoughts on the construction of China’s legal system of true sale based on theoretical study: first is to set up the range of assets that can be securitized, stipulate the way to traner asset, simplify formalities of asset traner and define clearly the condition of asset true sale. The second is that by drawing legislative experience from American, Japan and other countries, the announcement is to be included in specialized asset securitization law or in relevant sections of obligation law, taking the proclamation method of assignment of a claim as a supplement to the original noticing way. Third is to define conditions of true sale. The fourth is to amend the stipulations of the current Guarantee Law that the principal creditor’s right is not negotiable in the mortgage contract of maximum amount.The current asset securitization in China still needs further improvement and the legal system that is in set with asset securitization to make up the legal loopholes, regulate the acts of employment agencies and protect the interests of many investors in order to provide an appropriate legal environment for asset securitization.
论文关键词： 资产证券化；真实出售；债权让与；
Abstract（英文摘要）：www.328tibEt.cn Asset securitization refers to a system design in which the financier is separated from the certain asset originally held by him or her that can produce stable current flow, in order that the asset and the business risk of the financier get separated, also securities issue and financing activities in capital market is undergone with this certain asset as credit base. The essential characteristic is to issue securities with the credit base of certain asset. With independent asset creditability, asset securitization floats securities, separating the promoter’s business risk and the securitized asset. In order to achieve the aim of the separation of asset and the promoter’s business risk, the traner of the securitized asset must conform to the standard of true sale. The paper presents a systematic research on the capital traner system of asset securitization with a deeper analysis on the basic theory of capital traner system and its operating mechani, besides this, some suggestions on the construction of true sale system in China is provided based on the study of current laws and theories.The article is divided into four parts.Beginning with the basic theory of asset securitization, part 1 makes a study on its original development, definition, operating procedure, innovative sense and economic analysis and other issues so as to he a full understanding on the basic content of asset securitization. Asset securitization firstly appeared in America of 20 century. In early days of 1970s of 20 century, severe inflation occurred in America, and citizens was reluctant to se money in the bank, thus, financial institutions were not able to obtain sufficient and stable capitals, in which the condition of housing financial institution is the severest. Therefore, the three biggest financial institutions of housing loan were to make portfolio of the holding home mortgages according to deadline, interest rate and asset situation. With this as guaranty, they issued mortgage securities to raise fund, where the asset securitization of America began. Thereafter, the securitization technique is widely used in capitals beyond home mortgage until now which has become a mature financial market.The operating procedure of asset securitization is mainly composed of two steps in which the first step is about capital segregation, the organizational structure adjustment of traner and step two is to raise fund by floating securities based on tranerred capitals with stable current flow. Lawyers, accountants, credit rating agencies and capital exclusive agencies and other intermediaries are involved in the whole process of securitization.The innovative sense of asset securitization is mainly expressed in that it creates an innovative financial market which benefits all participators as corporations, financial institutions, investors and etc.Part 2 studies the theoretical issue of true sale system, not only making legal analysis on the true sale but also discussing the special problem of assignment of a credit in asset securitization. By drawing lessons from the most mature laws of America in asset securitization on its stipulations about true sale, it is generally considered that only by possessing the following conditions, can the party of capital traner be taken as true sale: the form of capital traner and the true meaning in the minds of parties can mean true sale; the risk of securitized asset is fully tranerred; the beneficial right of securitized asset is completed tranerred to SPV; the traner of capital is irrevocable; the traner price must be reasonable. The paper makes legal analysis on the system of true sale from three aspects: the subject of legal relationship of true sale; the asset of true sale, the content of legal relationship of asset true sale.The essence of true sale in asset securitization is the assignment of a credit which is the first step of fund-raising in asset securitization. The characteristics of assignment of a credit in asset securitization compared with common assignment of debts are: the party is mostly financial institution; debtors who are assigned with credit right are indeterminate majority; creditor’s asset which is alienable must be a selective financial portfolio.Part 3 discusses the identification, legal risk and prevention of the true sale of asset. The traner of securitized asset must conform to standards which are stipulated by accounting law and bankruptcy law. As to the identification criterion of true sale, the following aspects can be taken consideration by referring to relating legal regulations in foreign countries and combining many judgment standards of true sale in theory and practice: the intention of true sale, the mechani of pricing, ancillary rights, the right of recourse to the promoter, the issue of providing asset management service, the redemption right of the promoter.If the act of capital traner between the promoter and SPV can not take effective measures and not conforms to the requirement of true sale, it might lead to the inoperability of asset securitization. The article gives a discussion on risks might be suffered in the true sale of asset, such as the risk of revocable transaction, re-qualitative process, entity merger-type risk, and also some preventive measures are provided against the above risks.On the basis of the analysis of the current legal environment in China, part 4 puts forwards envision on the construction of true sale system. The asset securitization of China is still in the preliminary stage. Though there are precedents of international asset securitization, China’s asset securitization is still in the stage of theoretical exploration and experiments. There are many aspects involved in the theoretical exploration of China’s asset securitization; however, the paper mainly deals with the necessity of constructing true sale in the current legal environment and investigates the legal environment of constructing true sale system. Based on this, the author brings forward legislative envision on the construction of true sale system in China.The meaning of constructing true sale system under the current legal system mainly is that: the system of asset true sale makes up the disadvantages of bankruptcy law and security law in China.There are many legal aspects involved in asset securitization, of which many are beyond China’s current legal system. This overstepping means comparative large-scale of legislation, law modification and law abolition to countries with written laws. The paper attaches importance to the analysis on the current legal environment of constructing true sale system in China in the following aspects: legal regulations on asset traner of bank credit, regulations on the legal formalities of the traner of credit right, the stipulations of bankruptcy law on the asset sale with low price and collateral mortgage with price above erage and stipulations on the future assignment of a credit.Since the succesul operating of asset securitization requires a good legal environment, the paper brings up some thoughts on the construction of China’s legal system of true sale based on theoretical study: first is to set up the range of assets that can be securitized, stipulate the way to traner asset, simplify formalities of asset traner and define clearly the condition of asset true sale. The second is that by drawing legislative experience from American, Japan and other countries, the announcement is to be included in specialized asset securitization law or in relevant sections of obligation law, taking the proclamation method of assignment of a claim as a supplement to the original noticing way. Third is to define conditions of true sale. The fourth is to amend the stipulations of the current Guarantee Law that the principal creditor’s right is not negotiable in the mortgage contract of maximum amount.The current asset securitization in China still needs further improvement and the legal system that is in set with asset securitization to make up the legal loopholes, regulate the acts of employment agencies and protect the interests of many investors in order to provide an appropriate legal environment for asset securitization.
论文关键词： 资产证券化；真实出售；债权让与；