A Number Of Legal Issues Of Asset Securitization Is A Comparative Study

As an important financial innovation emerging in the 1970s,asset securitization,based on the legal systems of security and securities,transforms static creditor's rights into negotiable securities. While possessing at the same time the characteristics of asset credit financing,structured financing and off-balance sheet financing and being different from the traditional financing instruments,asset securitization has evolved into a new financing instrument prevailing in global capital market. This dissertation,based on the research of the asset securitization practice in the U.S. as the original country and the U.K.,France,Italy and Japan as succeeding ones,abstracts the common legal rationale of asset securitization under the market economy conditions and offers a comparison of this with the existing legal environment in China,by adopting the research methods of comparative analysis,empirical analysis and inductive analysis. The author holds that the operation of asset securitization should be regulated and promoted by drafting a special law and taking related measures. Besides the preface and the conclusion,the dissertation comprises seven chapters.Chapter one presents a summary of asset securitization,focusing on the study of the connotation and extension of asset securitization. The author points out that asset securitization,which amalgamates the advantages of the legal systems of debt,security and securities,has the characteristics of asset credit financing,structured financing and off-balance sheet financing. The author further demonstrates that asset securitization can bring forth a rigorous and integrated financing structure with Special Purpose Vehicle (hereinafter:SPY } as the center,on the ground of creditor's rights assets that can produce stable cashflows in the future and with the support of contracts specifying the parties' rights and obligations. This chapter also summarizes the legal systems of asset secritization in both common law countries and civil law countries.Chapter two to Chapter six abstract the common legal rationale of assetShortened forms of important terms are used in the dissertation upon their second appearance,please refer to the index of abbreviations for further reference.securitization and analyze the major legal issues in the practice of asset securitization by means of studying related foreign laws.Chapter two investigates the legal issues concerning transfer of assets to be securitized. The author points out that "bankruptcy-remote" of assets is primarily achieved by "true sale" of assets and constructing SPV featuring "bankruptcy-remote". "True sale" requires that all rights,risks or control rights be transferred altogether to SPV from the originator,in the process of which due attention should be paid to avoid the occurrence of the revocable transaction risk,the recharacterisation risk and the commingling risk. The constructing of SPV featuring "bankruptcy-remote" requires that efforts should be made to isolate SPV from both the risk of bankruptcy of itself and that of the originator,and prevent the occurrence of "substantive consolidation",which re-categorizes the transferred assets into bankrupt assets,while disregarding the form of SPV being company,partnership or trust.Chapter three discusses the legal issues of the issuing and transaction of the asset-backed securities. The market-oriented securities laws system in the U.S. is taken here as an example. The U.S. securities laws,to certain extent,view asset-backed securities and SPV as securities and investment company respectively and provide immunities for them. In aspect of securities activities supervision,on the one hand,the U.S. securities laws provide private offering> exempting from registration to facilitate the operation of securitization and prescribe strict applying conditions and the lowest degree of information disclosure obligations to promote the establishing of agency investors and protect the investors;on the other hand,the U.S. securities laws,following the legislative philosophy...