The Function And Realization Of Special Purpose Vehicle

As a structural financial innovation mode,asset securitization has been widely developed and applied in the world,and the special purpose vehicle is at the core of this "financial alchemy".For a long time,the research literature on special purpose vehicle is numerous.Since the beginning of asset securitization in the nineties of last century,the introduction of asset securitization and the legal research on its trading mechanism have been increasing day by day,and the research on asset securitization and its special purpose carrier has spanned many disciplines such as law,economics,banking and so on.At the same time,with the continuous improvement of asset securitization regulatory rules,China's asset securitization market is also growing rapidly,especially since 2014,which has achieved rapid development,with new records of increment and stock size.In the past two years,with the maturity of the payment of the stock asset-backed securities,there have been downgrades of various asset securitization projects in the market,or even default payments of multiple projects,which makes the cash flow of basic assets seriously difficult.In the face of such a situation,we should focus on the trading mechanism of asset securitization itself,and analyze and explore the core of this financial trading innovation mechanism,regardless of the impact of external factors such as the overall economic cycle and regulatory system.Through the analysis,it is found that in the whole process and overall structure of asset securitization transaction,whether it is the guarantee of basic asset cash flow,the repayment arrangement during the existence of asset-backed securities,or the cooperation and moral hazard prevention and control between the intermediary management service agencies,they are all related to the special purpose vehicle.Then,how to locate the special purpose vehicle in the asset securitization trading mechanism,how to define its function,and how to realize the function through the transaction mechanism of asset securitization and the necessary equipment of the special purpose vehicle itself have become a problem of research necessity and research value.The general idea of this paper is: starting from the current practice of asset securitization,analyze the causes of the problems,and focus on the adverse effects of the lack of special purpose vehicle function on Asset Securitization(Chapter 1);next,focus on the overall research of special purpose vehicle function,summarize the two major functions that special purpose vehicle should have(Chapter 2)In Chapter 2),after defining the function of special purpose vehicle,following the basic logic of subject and behavior,the specific ways and paths of realizing the function of special purpose vehicle are studied and analyzed respectively from the organizational basis and behavior basis of function realization(Chapter 3 to Chapter 5).In the basic part of organization,it is clear that the special purpose vehicle should exist as a special type of commercial subject;in the basic part of behavior,it introduces the theory of behavior paradigm,and forms the behavior paradigm and its implementation path that the special purpose vehicle should have.In addition to the introduction and conclusion,the main part of the paper is divided into five chapters:Chapter one,problems and causes.At present,there are many problems in the field of asset securitization in China,which are summarized as follows: the credit of asset-backed securities is still not separated from the dependence on the subject credit,the high correlation between the sponsor's operation status and the quality of basic assets,the lack of strict control over the screening and screening of basic assets,and the loopholes in the centralized control of cash flow,etc.From the perspective of research on special purpose vehicles,the reasons for the above problems are mainly due to the lack of theoretical exploration and cognition on special purpose vehicles,the incongruity or conflict between the rules of special purpose vehicles and the integration process of China's legal system environment,the division and balance between the regulatory structure of capital market and the power of departments,the rapid development of asset securitization and the sluggish system supply There are contradictions between the latter.Based on the analysis of the reasons,this paper summarizes the adverse effects of the lack of special purpose vehicle functions on the current asset securitization in China,which mainly include: it is difficult to play the effectiveness of asset securitization credit mechanism supported by basic assets,it is difficult to ensure the stability and balance of asset securitization structural trading system,and it is difficult to ensure the safety of cash flow collection and control.Therefore,there are many reasons for the problems of asset securitization in China.The lack of function of special purpose vehicle is one of them.The scientific positioning of the special purpose carrier function and the improvement of the system measures and mechanisms to ensure the realization of its function will help to alleviate and solve the existing problems of asset securitization.The second chapter,the function of special purpose vehicle.Starting from the basic principles,trading links and multiple footholds of investor interest protection,combined with the analysis of the current problems and causes,this paper summarizes the special purpose carrier function: "one core function" and "two system functions"."One core function" is to protect the interests of investors,which is embodied in "two major institutional functions",namely,to guarantee the independence of basic assets and to shape the legal relationship of structured financing transactions.To guarantee the independence of basic assets is the primary system function of special purpose vehicle,and the independence of basic assets is also the fundamental of the financial innovation mechanism of asset securitization.Without the independence of basic assets,the unique asset credit support mechanism of asset securitization will not work.Special purpose vehicles guarantee the independence of basic assets through three aspects: first,create an independent carrier of basic assets.After the realization of the real sale of the basic assets with the sponsors(the original equity holders),the trend of asset personification appears,that is,the basic assets themselves have the tendency to obtain the qualification of independent legal subject,so as the special purpose carrier of the basic assets undertaking platform,the main body of holding and managing the basic assets should be constructed first;secondly,the special purpose carrier will combine the basic assets with the development of the basic assets The real sale and bankruptcy are separated between the initiators(original equity holders).This is a legal process in a strict sense.The special purpose vehicle needs to completely separate the rights and risks of the basic assets from the promoters(original equity holders),and it needs to prevent the influence of the bankruptcy risks from the special purpose vehicle itself and the promoters(original equity holders).At the same time,during the existence of asset-backed securities,the special purpose vehicle should also guarantee the security and stable existence of the property rights of the basic assets,eliminate the risks of ownership disputes or misappropriation,confusion and misappropriation of the basic assets and the cash flow generated,as well as the existing information asymmetry and moral risks.In shaping the legal relationship function of structured financing transactions,the special purpose vehicle creates the institutional advantages of asset securitization compared with equity and debt financing,realizes the transformation of financing credit mechanism and risk redistribution,creates a new property right relationship and control relationship for financiers,and realizes the integration and balanced allocation of cash flow and transaction information.The determination of the function of the special purpose carrier is the key to its institutional value.The third chapter is the organizational basis of the realization of the special purpose vehicle function.From the perspective of legal attribute,whether the special purpose carrier is a contract set or a specific legal subject,there are cognitive differences between the two legal systems.In the common law system,the spirit of contract has a long history and has universal applicability and strong legal penetration.Contract interpretation or contract perspective provides a powerful perspective for the objective understanding of legal organizations,especially commercial subjects.However,it is difficult to explain the essence of the legal subject of the special purpose vehicle by regarding the special purpose vehicle as a contract aggregation.They are different in the construction principle,operation mode and responsibility mechanism.Through the investigation of the organization form of the special purpose vehicle in the United States,we can recognize the diversity and complexity of the organization form of the special purpose vehicle in the American law.In the corresponding civil law system,more attention has been paid to the independence of legal subjects and the specific ownership of property rights,and a strict system of property rights has been formed.Therefore,using the thinking of civil law system to analyze the relationship of property rights in asset securitization and the organizational attribute of the special purpose carrier will emphasize and highlight the special purpose carrier as the legal organization.At the same time,there is a clear distinction between special purpose vehicles and consortia,intermediary organizations and trusts,which also highlights the characteristics of special purpose vehicles in purpose,form and existence.From the point of view of realizing the function of special purpose carrier,it is necessary to give the special purpose carrier an independent legal subject status and bring it into the category of special commercial subject type.The fourth chapter,the behavioral basis of the special purpose vehicle function realization: the introduction of behavioral paradigm theory.In order to ensure the realization of the function of special purpose vehicle,in addition to having the necessary organizational foundation,the implementation of special purpose vehicle specific behavior is also one of the basic conditions.From the point of view of the purpose of the establishment of the special purpose vehicle,its own capacity and scope of behavior are indeed limited.However,if the special purpose vehicle is defined as a passive inaction channel,the institutional function given by the basic principles of asset securities will be difficult to achieve.In a strict sense,the "channel" special purpose carrier of passive inaction is only a legal carrier to undertake the basic assets and separate from the sponsor(the original equity person)in terms of risks and rights,which can not play the role of protecting the independence and safety of the basic assets and the rights and interests of other investors.Different from the behavior of the common commercial subject,the special purpose carrier,based on the specific purpose,has defined the scope and mode of behavior at the beginning of its establishment.In the research process,the author draws on the paradigm theory in the field of philosophy of science and technology,and applies it to the behavior research of special purpose carrier function realization.The profound and rich connotation of paradigm theory represents a methodology and world view of exploring and recognizing the world,while behavior paradigm is a kind of concept in the logic of paradigm theory.Behavior paradigm can be understood as a stable,mature,conventional or jurisprudential behavior model that a certain industry or behavior subject should have.The behavior paradigm of special purpose vehicle has the characteristics of standardization,incommensurability,hierarchy,systematicness and dynamic.According to these five characteristics,we can dissect and analyze the behavior of special purpose vehicle function realization.At the same time,the behavior paradigm of special purpose vehicle should also abide by the three principles of integration,legality and modesty.It is necessary and significant to introduce the behavior paradigm of special purpose vehicle,which can systematically deconstruct the behavior structure of special purpose vehicle,reasonably divide the behavior scope of special purpose vehicle,provide the mode to follow for the behavior of special purpose vehicle,and prevent the ultra vires and other risk behaviors of special purpose vehicle.These values provide important behavior guarantee for the realization of the special purpose carrier function.The fifth chapter,the behavior foundation of the special purpose vehicle function realization: the behavior paradigm implementation.Under the guidance of behavior paradigm theory,the special purpose carrier can achieve the goal of function realization through concrete behavior.There are two main parts in the behavioral paradigm of "ensuring the independence of basic assets",which are to avoid the bankruptcy risk of special purpose vehicles and to limit the external business scope of special purpose vehicles.The ability of bankruptcy isolation of special purpose vehicles is the cornerstone of all asset securitization.To avoid the voluntary bankruptcy of special purpose vehicles in asset securitization in the United States,it is mainly achieved by setting the articles of association of special purpose vehicles,the agreement of promoters or other organizational documents to restrict the application for voluntary bankruptcy;to avoid the voluntary bankruptcy of special purpose vehicles in asset securitization in Japan Production pays more attention to prevention and regulation in advance.The behavior paradigm of these two parts is an important path to ensure the independence,value and safety of basic assets.Among the behavioral paradigms to realize the function of "reshaping the legal relationship of structured financing transactions",the behavioral paradigms are divided into three categories according to the standard of the behavioral object: the initiator,the investor,the manager and the intermediary service agency.In the behavior paradigm with sponsors,SPV needs to undertake the real sale of basic assets and resist the possible risks of entity merger.The real sale needs to follow the strict standards in the legal sense,while the avoidance of entity merger requires not only the real sale standards,but also the judgment rules on the existence of the control relationship.In the behavior paradigm with investors,it is necessary to strengthen the information disclosure of asset-backed securities,ensure the collection and distribution of cash flow in accordance with the law,and rationally use credit enhancement measures To realize the whole process of investor's rights and interests protection;in the behavior paradigm with managers and intermediary service agencies,the special purpose carrier should play its supervision role as the entrusting party,clarify the responsibility boundary of managers and intermediary service agencies,and prevent moral risks in the transaction process.At last,the conclusion part summarizes the positioning of the special purpose vehicle: the special purpose vehicle has a specific function based on a specific purpose,and needs a specific legal organization form and specific behavior paradigm to achieve this function.Only in this way can we give full play to the institutional effectiveness of financial innovation and investor protection of asset securitization and ensure the steady development of asset securitization.