The Legal Problems And The Analisis Of Transaction Structure Of Asset Securitization In China

Asset securitization stem from American in the 1970's.As a financial innovation, it gathers the popularity in the international capital market because of possessing the characteristics of asset credit financing and structured financing. In recent years, there are many advices of bringing in this new mechanism in our theoretical circles, while in practice we have successful examples. In fact, asset securitization is a legal process more than an economic phenomenon. This dissertation centers on the analysis of the problems in transaction structure of China's asset securitization, in order to provide some beneficial materials to our practices of asset securitization.This dissertation includes five parts besides the preface:The first part of dissertation presents the basic lawful principles concerning asset securitization. The author introduces the conceptions, the history, the transaction structure and its lawful principles, the essence, the characteristics and the main types of asset securitization, especially explains the basic lawful principle "risk remoteness" on the basis of clarifying the transaction structure of asset securitization. The foundation of special purpose vehicle (SPV) and the result of the "true sale" in the process of transferring of asset are the symbols of "risk remoteness".The second part of the dissertation describes the history and current conditions of asset securitization in China which sets the border of discussion at first, and then elaborates on the lawful foundation of asset securitization in China. At last, the author makes a difference between the enterprise asset securitization and credit asset securitization.The third part of the dissertation mainly concentrates on the negative points in the current enterprise asset securitization of China. The most serious problem is the lack of the special purpose vehicle and so the author tries to find the reason. With the help of related researches, the author explains the essence of enterprise asset securitization.The fourth part is the legal problems in the transaction structure of credit asset securitization, which contains the uncertainty of the transfer process of security asset and the imbalance about the parties' rights and duties in the process of securitization. After the analysis of above problems, the author finds that some rules and regulations which standardize the performance of credit asset securitization bringing misunderstandings of the structural use of the "trust" in the asset securitization. And on the basis of indicating the differences between the civil trust and commercial trust, how to straighten out the logical legal organization in the asset securitization is crucial to solving those above problems.The last part is the conclusion. Through the study about the current practices of the enterprise asset securitization and the credit asset securitization, the author suggests the way to solve the legal problems in the transaction structure of credit asset securitization is to make special legislation of asset securitization. And the legislation which has the higher legal effect should be made by Standing Committee of the National People's Congress, with reference to the relative legislation in Taiwan region.