On The Practical Barriers Of Chinese Commercial Banks' Non-performing Asset-securitization & Legal Reaction

Asset-securitization, as a new kind of financing techniques, its flexible design should be coordinate with different countries'social, legal and economical environment. Therefore, its fast development has brought out many dealing modes. The general flow of asset-securitization includes: collecting securitization assets, founding special purpose vehicle (SPV), transferring assets, credit enhancing and credit rating, issuing equity and tendering. On the one hand, the flexible design of securitization can adapt to a country's legal circumstances enormously, and on the other hand its unique and exquisite transference-assets system and bankruptcy-remote mechanism also give rise to new requests and great challenges to our country's traditional legal system.The non-performing asset securitization of commercial banks is our country's attempt to solve her large amount of non-performing asset that definitely will increase brings crisis the operational risks of the commercial banks. Although our country has certain conditions to non-performing asset-securitization, also has obtained some achievements and experience in the actual experiments, but the particularity of the formation of our country's non-performing asset-securitization of commercial banks and the complexity of asset structure, as well as the imperfection of the market subject, the rule and the supervising have created the giant realistic obstacles to the non-performing asset-securitization. The conflicts between the requests of non-performing asset-securitization of commercial banks and the traditional legal system of asset-transfer, bankruptcy, the company, the security and the tax revenue, as well as our country's asset-securitization legislative imperfection have presented many obstacles to the non-performing asset securitization. In order to develop our country's finance, improve the asset quality of commercial banks, we should realize our nation conditions, and learn from the developed country's successful methods and similar countries'or regional experience, and clearly realize the function and its importance of the non-performing asset securitization of commercial banks. The writer holds that on the basis of the facts our country should give strong support to it within the possibility of policy. On the circumstances of preserving the present legal system and the stability of market, our country should both make use of the accomplished legislative fruit and break through the present legislation so as to establish the harmonious legal system of solving commercial banks'non-performing assets.Because of the particularity of the non-performing asset of our country's commercial bank and the immaturity of our country's market system, the asset-securitization cannot fundamentally solve the problem of our country's non-performing asset of commercial banks, but can only be one of the solutions to certain parts of asset .To establish the asset securitization legal system for commercial banks, in the legislative form, it may base on the previous legislation's achievements and experience. It should take the mode of concentrated legislation practice and the separate legislation. As far as its content is concerned, if should reflects the innermost requests arising from the issue of non-performing asset securitization, and it should put emphasis on the following aspects: special legal system for market subjects,asset-transference, risk insulation, tax revenue, etc.