Legal Study On Risk Remoteness Of Asset Securitization

Since having been born and deveoped flourishingly in American capital market at the beginning of 1970s,asset securitization,as a young member of the financing family,rushed out of American and into Europ capital market in 1980s,Asian capital market in 1990s depending on its various advantages,and gradually became one of the favourite financing ways in capital market after stepping into the twentieth century.Asset securitization attracts attentions from all circles in the prosperous developing process of the world capital market,and also promots China to explore the innovative financial tool.In the process of innovation of financial system,risk remoteness mechanism is regarded as the core and advantage of asset securitization. Thus,this paper chooses risk remoteness involved as the object of study.The author applies law knowledge learned to theory and empirical analysis and hopes to establish a kind of norm system of risk remoteness according with our national conditions.This article firstly introduces the connotation and legal characteristics of asset securitization,pointing out that the institution essence lies on segmenting and restructuring securitized asset,that is future cash flow,and the core of its transaction structure rests with designing its risk remoteness mechanism.Risk remoteness mechanism mainly involves two aspects:one is to set up qualified SPV and realize the bankruptcy-remote;the other is the transfer of securitized asset between sponsor and SPV which forms jural "true sale" to realize bankcruptcy-remote of sponsor farther.The paper also reflects the risk remoteness mechanism under the background of the current worldwide financial crisis caused by American subprime mortgage crisis,and then applies such educed conclusion to the following concrete discussion. On top of,starting with the asset securitization practice of developed countries especially America,the paper studies in detail the legal system of SPV bankruptcy-remote and sponsor bankruptcy-remote of risk remoteness mechanism mostly from the perspective of comparative analysis.And it also discusses the following main parts of risk remoteness mechanism,such as:SPV's legal organization form,how securitized asset remotes from SPV bankruptcy risk,in what ways asset realizes transfer between sponsor and SPV,how to judge the legal standard of true sale,and how to avoid substantive consolidation.All of these are served for the Chapter Five.Considering the present practice on asset securitization and the legal circumstance of securitization transaction in our country,this Chapter focuses on suggesting to make special Asset Securitization Law to regulate risk remoteness mechanism stated above,and to provide system guarantee for the smooth development of asset securitization in our country.