The Legal Analysis Of Special Purpose Vehicle In Securitization

Securitization is the greatest financial innovation of last century.With the outbreak of US sub-prime mortgage crisis,securitization has been called into questions.But we can not deny the financing strength of the securitization through rational analysis.In the entire operation of securitization,the legal construction of special purpose vehicle(or SPV) is critical.It is necessary to analyze the SPV from the legal perspective and construct the legal system of the securitization.According to the train of thought,this paper compares and refers other country's related legal system of securitization,and combines the present situation of our country;eventually make some recommendations of the construction of SPV.All paper is divided into four parts:The first part researches some basic theory of securitization.Firstly,it introduces the origin and the development of the securitization;secondly,it introduces common principles of securitization,including the legal definition and essence of the securitization;at last,it analysis the relation between the securitization and the US sub-prime mortgage crisis.The second part discusses some basic theory of SPV.The SPV is the core of the securitization.At first,it analysis the legal meaning of the SPV from the legal perspective; then,it introduces the procedure of the securitization and analysis the status and function of the SPV;at last,it deeply analysis the legal virtue of the SPV by the principle of civil law and leads the conclusion that SPV is a social group corporate entity with civil law qualifications. This conclusion fills the blank of the theoretical circles,is the innovation of this part.The third part introduces two kinds of operating mechanisms of SPV:In the first place,it introduces the trustee of the special purpose trust mechanism.It constructs the law system of the trustee of the special purpose trust mechanism by introducing the principle of the trust.It introduces the two mode of trustee's operation;how to isolate the crisis and the trustee's rights and obligations.Then it introduces the special purpose company.How to isolate the crisis is the focal point of this part which contains the isolation of the assets and bankruptcy.The trueness of sale of assets is the effective approach of the isolation of the assets.Separately introduce the implementation of the isolation of the crisis between the trustee of the special purpose trust mechanism and the special purpose company is the highlights of this part.The forth part discusses a series of legal obstacles encountered by SPV in China current situation,including conflicts with actual laws and regulations and deficiencies of laws and regulations.At last,the author puts forward the resolution model of legal obstacles on the basis of Chinese legislation,by learning from other foreign countries experience on legislation models and referring the lessons of the US sub-prime mortgage crisis.