| The asset securitization is the most important financial creation of 20 centuries, although it doesn't yet open the related business in China, but for being in line with nations as soon as possible, it is necessary to research this problem. Currently, our country still lack of the experience of asset securitization, the relevant theories are also very misty and exist many disagrees, it leads to dragging on the work of establishing the asset securitization law system because of lack of explicit guideline and standards. In this text the asset securitization of the bank is point of departure. The author analyzes the content, development, the law relation's subjects, the trading structure and the law obstacle of asset securitization, and put forward the suggestion that the law system construction of our country asset securitization definitely. The entire text content includes the four chapters totally. The first chapter, the author introduced content and its legal basis of the asset securitization. Firstly the author elaborates the meaning of asset and securities, and then discusses the content of the asset securitization. The define of asset securitization according to American Securities and Exchange Commission (SEC) is: "founding the securities that is backed by cash flows that is produced by a discontinuous payment should be accepted or other properties, it is fixed or circulatory, and can transform into cash according to the item in certain period. At the same time, adding other right or properties to guarantee the above-mentioned support or allotment income to the coupon person on time. "In short, the asset securitization is that the owner transfers some future rights, converts low mobile property to the form of securities, then sales it to the investor for property circulating. Because the property that was converted most is loan from the bank, it belongs to credit creation of the bank, so it is called the reputation securitization. The essence of securitization is that the way of the margin is the indirect margin change the direct margin; Then the author elaborates the law essence of the asset securitization, and from three aspects the author elaborates concretely the law system value of the asset securitization; then elaborates the law basis of implementing asset securitization in our country. The second chapter, the author elaborates that the basic legal principle of the asset securitizations. Firstly, the author elaborates that the subjects of the law relation of the asset securitizations. On one hand, the bank and investors start and terminal points of the securitization process. The bank is a sponsor, who need funds of the margin; the investor is an investor, the one who purchases the asset securities. The asset securities that are published by the bank only can carry out by selling. And some investors are personal investors, another is the organization investors, viewed from the development experience of the abroad, the organization investor purchases the asset securitization mainly. To carry out the asset securities, it is necessary that the asset securitization own a qualified subjects position. Thus, the asset securitization can implement smoothly. Viewed from current, it is no problem that the commercial banks of our country sell the property as the qualified subjects. Because 43rd Article of The Commercial Bank Law in our country although it is ruled that the commercial bank cannot be engaged in the business of trust the investment and securities in the People's Republic of China, but it is revised in December 2003, there is a proviso item "but except this situation that nationhave another provision ", this provision opened the room that develop asset securitization in our country. On the other hand, the author elaborates a special purpose vehicle( the Special Purpose Vehicle, SPV), the SPV is a very special law entity, it is a" empty hull company" generally, have no or few fixed place, personnel, its business is only the asset securitization. But in the United States, the law form of SPV mainly has three kinds: the limited partnership, the trusts, and the company (the limited partnership and the trusts are typical model). But, because of the difference between our country and the United States in the law tradition, cultural background and development of economy etc, and the limited partnership form was often used to avoid the tax. Viewed from the fulfillment of Taiwan and of the region of Hong Kong, all of them use "the company", the SPV is a corporation's legal person that has the independent law position. But The Commercial Bank Law and The Securitizations Law in our country rule the commercial bank and the securities company's the registration capital and the conducting scopes. Moreover, in addition to bank, investor and SPV still need have other participant, such as the reputation rating organization, the guarantee organization, the investment bank, securities manage company, insurance company, law firm, accounting firm, and the finance adviser etc, some professional troops, these already can be certified by practice. Finally the author elaborates that the transaction structure and its law analysis of the asset securitization. The bargain process of the asset securitization is not only an economic process, but also a law process. These embody it: At first, the asset securitizations involve many subjects such as the original debtor, original rights person (usually is also the sponsor of the asset securitization, in asset securitization of loan, it's the bank that loan), service and trust the organization,rating, the investment bank...etc, especially it need the center of a SPV as the structure of trade. Establish, activity, withdraw of these subjects involve the juridical norm. Secondly, each links of the asset securitization involve the right and duty of different participant, this is supported by the contract, and the contract not only has the binding force of law guarantee, but also need the law confirmation. Thirdly, the asset securitizations'inside" the bankruptcy insulate", "the True sale" etc need the law standard to guarantee. So the economic analysis to the bargain process of the asset securitization must accompany with the law analysis. The third chapter, the author carries on the law analysis to the transfer of the asset securitizations. He mainly elaborates four law problems. The first one is law analysis of the transfer of obligatory right, the author mainly analyze the specialty and registered system of the Credit-Assignment; The second one is the law analysis of to do not carry out the precedence. The third one is the law analysis of bankrupts to insulate, the author carries on the law analysis to the bankrupts to insulate, mainly analyze problems of auxiliary collateral transfers and excess mortgage for loan. The fourth one is the law analysis of the True sale, the author defines the True sale , and elaborates the way and procedure of the True sale. The fourth chapter, the author elaborates the law environment construction and lawmaking suggestions of the asset securitization. Firstly, he elaborates the foreign lawmaking construction of asset securitization. Then the author puts forward that China should speed to modify the existing law and to clear law obstacle in order to develop the asset securitization. Finally, the author elaborates the law adjustment mode of the asset securitization, and...
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