| The system function of real estate mortgage securitization is to guarantee the liquidity and financing of real estate mortgage.The research difficulty of this paper lies in the historical origin and flow of real estate mortgage securitization.The research focuses is to clarify and review the current legal system of real estate mortgage securitization in China,find out the "problem system" and explore its optimization scheme.Around this basic proposition,this paper needs to answer six sub-questions: what is the civil law basis of real estate mortgage securitization? How did it come about? What patterns did it form? What is the legal system of real estate mortgage securitization in China? What are the problems with these legal systems? How to optimize the “problem system ”?Real estate mortgage securitization is divided into direct securitization and indirect securitization.Driven by the principle of real right law of “make the best use of it”,real estate mortgage takes the road of abstraction,separating it from creditor's rights,establishing circulation mortgage system,making real estate mortgage relatively or completely independent of creditor's rights,and combining directly with securities,taking itself as the investment object,financing from the market,thus realizing circulation and financing function.The principle of real right law of “make the best use of it” constitutes the civil law basis of the direct securitization of real estate mortgage.Under the guidance of the principle of contract law of "value is exchanged ",in countries without the establishment of circulation mortgage system,real estate mortgage with strict subordinate status is packaged together with creditor's rights,and the technology of asset securitization is used to combine real estate mortgage with securities indirectly through the intermediary of financial institution,so as to realize the circulation and financing of real estate mortgage.The principle of contract law of "value is exchanged" constitutes the civil law basis of indirect securitization of real estate mortgage.It is found that both the direct and indirect securitization of real estate mortgage originated in Germany,the two are almost simultaneous,interpenetrating,mutually reinforcing and interlaced.Direct securitization can be traced back to the Prussian Mortgage Order of 1783,so far has established the most detailed and complete mortgage certificate system.Indirect securitization dates back to the establishment of the Silesia Credit Association,the German credit organization,in 1770,and matured in the late 19 th century when mortgage banks flourished.Because direct securitization has natural defects in financing ability,it is bound to be surpassed by indirect securitization,which gradually becomes the most important manifestation of real estate mortgage securitization.Indirect securitization has formed two most typical models: the German model and the American model.The German model of real estate mortgage and its secured creditor's rights are not transferred from the financial institutions,the accounting treatment is to continue to remain in its balance sheet,is in the form of securitization.The American model,through structural design,makes the basic assets composed of real estate mortgage and creditor's rights package,independent not only from the lender,but also from other assets of the special purpose entity,in order to isolate the bankruptcy risk of the lender or the special purpose entity,which is off-balance sheet securitization.The German model is safer,has a great influence on our country before the pilot,and the American model is more efficient,which is the realistic choice of our country.The securitization of real estate mortgage in China begins with the securitization of urban personal housing mortgage,and the securitization of rural land mortgage has not yet been produced.The pilot work was divided into four stages,which lasted for 10 years before entering the normal stage of development.The securitization of real estate mortgage is a structured financing behavior,with many participants and complicated legal relations.In the ten years since the pilot project,its legal system has been continuously improved.The basic framework and main contents of the securitization are composed of "basic law "," single law" and "bylaw" formulated by various ministries and commissions of the State Council.Other contents are constructed by legal norms scattered in other legal texts.This whole set of legal system is established under the guidance of the guiding ideology of "while piloting while legislating ",and the intention of encouraging innovation is obvious,but it will inevitably lead to legislative conflict,legislation is not in place,and can not be relied on.Through a comprehensive view and review of the legal system of real estate mortgage securitization in China,it is found that there are the following main problems: the legal system of realizing housing mortgage needs to be improved,the legal system of registration of change of housing mortgage is ambiguous,the legislation of pre-mortgage legal system is not in place,the legal system of mortgage is the only housing legal system is unfair,the doctrine of notice of assignment of creditor's rights is in conflict with the principle of obtaining debtor's consent,the ownership of basic assets is unclear,Whether a trust company has the qualification to issue securities is in contradiction between upper and lower law,inadequate legal system for financial institutions,etc.To solve these problems,some can be regulated by making new legal norms,others can be optimized by modifying existing legal norms.This paper puts forward the concrete optimization scheme and suggestion: in the legal design of dealing with the default of housing mortgage loan,we should take the change of housing mortgage contract as the pre-procedure to realize housing mortgage,and then allocate the incentive and restraint mechanism to guide the loan service institution to choose the default relief measure of housing mortgage contract change voluntarily.Although the German model has a much smaller impact on our country than the American model,when our real estate market enters the decline channel or "thin" the bank off-balance sheet business,the safer German model may become an important goal for our study and reference.In the future practice of personal housing mortgage securitization in China,the two models of the American and Germany simultaneously,perhaps more reasonable choice.In addition,the law should enforce the registration of the change of the mortgage of real estate,give priority to the payment of the pre-mortgage right by reference to the practice of construction project funds,make clear that the main body of the ownership of basic assets is the issuing institution,the financial industry should establish the mixed business mode in legislation,strengthen the construction of the legal system of credit information and strengthen the implementation of credit information,and should also establish a risk internal control mechanism. |
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