Legal Study On Some Issues Of Residential Mortgage-Backed Securitization In China

As a kind of important financial innovation, the asset-backed securitization (ABS for short) which originated in American in 1970s has got a great development in American market, European market, Asia market and become one of the most popular financing implement. In China, the ABS came into practice in 1990s, but it faced difficulties in development. In March, 2005, the People's Bank of China granted the China Development Bank and the China Construction Bank as the experimental units for the commercial credit loan asset-backed securitization(ABS for short) and the residential mortgage-backed securitization(MBS for short).On 20th April, the People's Bank of China and the China Bank Regulatory Commission enacted the Credit Asset-backed Securitization Supervisory Treatment which draw the outline of the securitization. No doubt the MBS break-out sparkles the great significance , but for the smooth operation of the MBS in China, it is all-important to "better soil", improve the financial environment and establish the legal system。This thesis try to make a systematic analysis about the legal obstacle for the MBS operation in China by the way of comparison and reference for the legislation mode in American ,United Kingdom etc., then give some legislation suggestions. This thesis consists of three sections besides the preface and postscript. The first section set about the theory of the ABS, then analyze the concept, operating procedure, characteristic, economic function from the legal angle and make a brief narration for the development on ABS in relative countries. As fundamental form, MBS shows its own character。This section make a legal analysis for the legal nexus of MBS,including the subject, the object and the content, and set forth the necessity and current situation in our country. The second section discuss the legal problem and obstacle in sequence of the operation in China law in force, including the "true sale", special purpose vehicle (SPV), the asset-backed securities and their issuance, the participation of the organization investor, and make an introduction about the relative countries. The third section is the comparison about the securitization development among American, United Kingdom and Japan , emphasizing the respective specialty ,then stating the legislation system; Comparing with the Credit Asset-backed Securitization Supervisory Treatment , the writer put forward some policies and legislation suggestions: standardizing primary residential mortgage loan market, playing a leading role for government, perfecting the insurance and guarantee mechanism,developing the credit rating system; clarifying the range of asset and the transfer mode, defining the SPV legal status, cultivating the organization investor, confirming the ABS and standardizing the securities issuance etc. At last, the writer work out the legal framework. There are several creative ideas: the writer make a systematic and deep study on MBS from legal point; and select special aspects to analyze the legal obstacles existing in 《Security Law》,《Company Law》,《Trust Law》,《Guaranty Law》; then give some legislation suggestions.