Research On The Legal Problems Of Secured Securitization Of Financial Assets

Financial asset securitization is a process that financial organizations boost up the credit of their creditor’s rights and then make them security right which can be freely exchanged in the market. These creditor’s rights has expected income, but has difficulty in floating, such as creditor’s rights upon house loan, creditor’s rights upon vehicle loan.In1968, the institution upon modern financial asset securitization was established in the American mortgage pass-through securities (MPTS) initially. It was based on particular asset combination of initiator. It was safeguarded through "bankruptcy-remote" and "true sale"; It was a kind of low cost financing manner for structured finance, in such finance transaction movements legal relationships were built.Financial asset securitization is complex system engineering. It contains manifold right carrier, transaction, financial organizations and other attendee, it concerns with contract law, asset law, security law, bank law, entrust law, bankruptcy law, tax law, procedure law, etc. Thus it is very important in theory and practice and rigorous law system is needed to guarantee it.In China, securitization practice remains in traditional way. The present institution and rules is too limited to support the future securitization practice. Although securitization practice is still in discussion, the trend is inevitable; the study upon relevant legal system is needed urgently.At present, the field of law still stays on a status of introduction the system partly; lack to coordinate it in basic theories of civil and commercial law. After research on the legal system of financial asset securitization, which I think there are two kinds of legal rights, two legal connections, five kinds systems to keep away the risks. I suggest making a special code to direct and support the development of financial asset securitization.The dissertation hackled the legal system upon financial asset securitization, analyzed the legal practice in the practice, furthermore the dissertation analyzed right of attendee.The first article of the dissertation is concerned with the basic concepts circled financial asset securitization; of course the significance of the study is expressed. In the first article, some concepts are distinguished firstly, such as mortgage security and mortgage bond.The second article of the dissertation analyzed the types and process of financial asset securitization, thereafter drew the conclusion, the structure and process of financial asset securitization is so complex and elaborate that complete legal system is needed to protect its function.The third article of the dissertation analyzed gives some legislative suggestions about how to design and perfect the floating public summons system of rights for guarantee.In China, there is few institution and rules supervising financial asset securitization. In the dissertation, it is suggested to make special rules to direct and support the development of financial asset securitization. In the rules, the essential character of financial asset, the legal standard of financial asset, the auditing process of financial asset, basic conduct rule of financial asset, the establishment of SPV, disclosure to information of sales about financial asset, parties’ continual duty, credit review, monitor and punishment mechanism. In order to harmonize with stipulations of other civil law and commercial law, security law, company law, and relevant stipulations of civil law should be coordinated.