| The incorporation of industrial capital and financial capital is expected to perform multiple functions such as alleviating the asymmetric information, reducing the transaction cost, improving the efficiency in the socialized production and allocation of resources, and spreading and diminishing the financial risk, which is in line with the developing direction of the modern marketing economy. However, one of the major problems that the financial legal system faces in the process of its development and self-improvement is how to guide the financial capital in a proper manner to cater for the need of the real economy. Legislators and supervisors around the world have increasingly realised the importance and urgency to solve the foregoing problem in the aftermath of the worldwide financial crisis between2008and2011. When it comes to China, it demands promptly a package of solutions in the legal practice of financial law as to promote the industrial restructuring by innovations and progress in the field of financial law, and to help enterprises to get out of the predicament of financing.The financial leasing, as one of the forms of five major financial business on par with banking, securities, insurance and trust, has been the second largest financing instrument in the international bond market, only behind the bank credit. In addition, the assets securitization, which is enables to turn the static credit assets into negotiable securities assets and considered as one of the greatest financial innovations since1970’s, characterize itself as a means of direct financing, structured financing and off balance sheet financing in the contrast of the traditional way of financing. The integration of the two financial products mentioned above gave birth to the finance lease securitization which has been characterized as a typical example of the incorporation of industrial capital and financial capital. Nevertheless, the worldwide financial crisis began in2008has urged all parties in the financial market to have a second thought as to the appropriate approach and institution to regulate the risk inherent in the structured financing like the finance lease securitization. In the risk society, the improvement of the legal regulations of the finance lease securitization should lie in the approach of encouraging regulations. This thesis mainly employs comparative analysis, positive analysis and inductive analysis. Based on an investigation of the origin, diffusion, evolution and the selection of instruments of legal regulations of the finance lease securitization in the U. S., the United Kingdom, German, and Japan etc., this thesis attempts to canvass the stimulating amelioration of the legal regulations of the finance lease securitization as a result of analysing China’s current legal circumstance and legal practices, and furthermore, this thesis wishes to put forward the proposal as to improve the legal regulations of the finance lease securitization in China. This thesis consists of six chapters except the introduction and the final conclusion.In the first chapter, the thesis mainly focuses on the historical origin of the legal regulation of the finance lease securitization. It begins with the analysis of the prosperity of both business of the modern leasing and assets securitization, which had considerable impact on the creation, development and innovation of the finance lease securitization. Along with introducing the development of the finance lease securitization, the thesis elaborates the concept, features, structure, classification and concerned legal relationship of the finance lease securitization. On this basis, the thesis further sheds light on the development of the legal regulations of the finance lease securitization by clarifying the inherent logic and detailed contents of concerned legal regulations. Eventually, the thesis comes to the conclusion as to the appropriate comment on and proper attitudes towards the functions of the legal regulations of the finance lease securitization after the worldwide financial crisis.Based on basic theories in some field related to the finance lease securitization, the thesis in the second chapter firstly points out that the financial risks in the modern risk society manifest features as limited predictability, highly subjective creation, duality and susceptibility. In order to cope with the financial risks with above-mentioned features, the financial legal regulations should adapt to the new environment accompanied with the risks, and introduce stimulating innovations, so as to receive the result of "non-individualization" of the risk regulation and the risk imputation, and the combined mechanisms of risk management characterized with diversification of participants and complementary cooperation, with a hope to achieve a fair balance between the egoism and the altruism, the free competition and the welfare society, and the autonomy of market and the interference of state. The finance lease securitization is meant to allocate the risks macroscopically, meanwhile microscopically, to implement the risk remoteness through the mechanism of reviewing authenticity of transactions mainly including the real lease and the real sale and the bankruptcy-remote mechanism. Therefore, related legal regulations should centre the following aspects:the identification of risks, the analysis of risks, the precaution of risks and the control of risks, and accordingly, the traditional ways of regulations of the disclosure of information, the evaluation of risks, taxation need to be overhauled.In the third chapter, the thesis in the beginning clarifies the objects of the value setting of the legal regulations of the finance lease securitization as efficiency, safety and the fairness. The thesis makes a deepened analysis in the conflict and balance between different objects of the value setting of the legal regulations of the finance lease securitization with a reference to the relationship of "formal rationality" and "substantive rationality" raised by Max Weber. On this basis, the thesis argues that the emphasis of the value setting of the legal regulations of the finance lease securitization has been reversed from efficiency to safety, a case in point relying on that the over-the-counter trading has been gradually transformed into on-the-floor trading and the central banks hold the monopoly of some more supervisory powers accordingly.In the fourth chapter, the thesis clarifies the selection of instrument in the legal regulations of the finance lease securitization through a thorough investigation of theories in market access, taxation, indexes of legal regulations and the disclosure of information. The market access of the finance lease securitization varies in different countries and regions. In general, in developed countries and regions, there are fewer regulations with respect.of the finance lease securitization, in contrast with those in developing countries and regions, where regulations normally appear in the form of the approval of license by authorities. In the regime of taxation of the finance lease securitization, differences remain in prre-tax income and withholding across the world. The responsibilities of disclosure of information regarding the finance lease securitization were rather loose before the worldwide financial crisis, while the recent reform demanded a more stringent system of disclosure of information by enforcing some measures such as credit reservation.In the fifth chapter, the thesis mainly analyse the prerequisites for an effective legal regulations of the finance lease securitization. The thesis presents the facts that these prerequisites largely lie in the innovative design and equity of relevant rights and the well-established foundations for pertinent market and business. The thesis further explains that the innovative design and equity of relevant rights play an important role in the legal regulations of the finance lease securitization, which consist of the creation of the concept of "economic property", the equity between the property and the possession and the guarantee of the right to retrieve. In the sixth chapter, the thesis elucidates the development of the legal regulations of the finance lease securitization in China, then analyses and summarizes the status quo of it, and finally offers some proposals for the improvement of it accordingly. The finance lease securitization started late in China, therefore until recently, there lacks a well-functioned legal system to govern this realm. Worst still, the current finance lease securitization has been dependent heavily on banks, and suffered from the high rate of indirect financing. Consequently, as the thesis indicates, the appropriate approaches to dissolve the existing problems of China’s current legal regulations of the finance lease securitization count on nothing but, on the one hand, reducing the level of banks’ participation in the process of upgrading credit, placing more heavier responsibilities of information disclosure on credit rating agencies and enhancing the professional competence and governability of credit rating agencies, and on the other hand, facilitating the replacement of Business Tax by VAT with the lessened impact negative for the finance lease securitization and increasing the tax incentives for the finance lease securitization. Last but not the least, the thesis argues that the improvement of the supervision of the finance lease securitization can be realised only by simultaneously achieving the fair balance between different objects of the value setting, the complete transition in both the operating model and supervisory model and the coordination of various supervising institutions. |
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