Study On The Legal Structure Of Special Purpose Vehicle Of Asset Securitization

Asset securitization, as a new kind of financial innovation, emerged from the United States in the 1970s. During 30 years, it has rapidly developed in America, Europe, Japan, South Korea and other developed countries and regions relying on its advantages in asset credit finance, bankruptcy remoteness and off-balance-sheet financing. Now it has become the major financing methods in these countries and regions. Special Purpose Vehicle(SPV), is one of the most important a organizer between the sponsors and investors, and it is the core position in the whole process of asset securitization transaction. Based on the basic theories of SPV, this paper first introduces the concept, types of SPV and the legal relationship among SPV and other asset securitization subjects. We study their respective legislation and legal structure of foreign's SPV. Based on overseas experiences and lessons, combining with the concrete condition of our country, author think that we should construct a new mode where there are Special Purpose Trust(SPT) and Special Purpose Corporation(SPC) about the legal structure of asset securitization's SPV exist. In the face of different defects of the SPT and SPC, we perfected the legal structure of SPV from the construction of legal system. The last but not least, combining with the concrete condition of our country, we put forward some relevant suggestions to perfect the legal structure of SPV in china.The paper consists of following three parts: foreword, mainbody and conclusion.Foreword mainly deals with the reasons and research methods for drafting this paper. In the face of global financial crisis, there are many opportunities and challenges for asset securitization. Although they are partial reasons for leading global financial crisis that American asset securitization technologies are excessively abused and lack of necessary regulatory measures, the loose legal environment is very important for development of Chinese asset securitization. Therefore, for the healthy development of Chinese asset securitization, we should calmly analyze experiences and lessons of the development of asset securitization in developed countries and regions, and we should combine with the concrete conditions in China to perfect the legal system of asset securitization.Mainbody of paper falls into four charters which covers studies on the basic theories of SPV, research on the legal structure of foreign SPV with comparative law, the perfect of legal structure of Our SPV and perfecting legal structure's legislative Suggestions of our SPV.The author, at the beginning, gives a definition on of SPV in the first Chapter, we respectively analyse relationship among the SPV and sponsors, investors, Securities underwriters, credit rating agencies and other services. Key analysis the type of the special purpose vehicle, and author think that SPV has different classification according to different standards. First, according to their respective functions and characteristics, SPV should be divided into three forms: Special Purpose Trust, Special Purpose Corporation and Limited Partnership. Second, in terms of the SPV's period, it has been divided into two types: one-time type of SPV and permanent type of SPV. Third, according to the different quantities of established SPV, it could been divided into two kinds of types: single SPV and double SPV. And we introduce the feature and application of each type.The author explores the overseas legal structure of SPV with comparative law approach in the second chapter. We analyze respectively their legislation of spv's legal structure, the legal system of Special Purpose Trust and Special Purpose Corporation in term of America, Japan and Taiwan. Finally, combining with the concrete condition of our country, author can put forward five aspects'enlightenment. Firstly, deregulation is a premise condition that we cultivate the market of asset securitization. Secondly, special legislation can protect the healthy development of asset securitization. Thirdly, we need construct a new mode where there are Special Purpose Trust and Special Purpose Corporation about SPV's legal structure. Fourth, We should permit the issue of various types, multiple grade securitization securities. Lastly, we should establish one or two Special Purpose Corporation with the background of government.The third chapter is the core of the paper. Using the experiences and lessons of America, Japan and Taiwan for Reference, combining with the concrete condition of our country. We will construct a new mode which there are Special Purpose Trust and Special Purpose Corporation, and we will perfect the legal structure of SPV with bankruptcy remoteness. This chapter first introduces the bankruptcy remoteness, then we analyze the bankruptcy remoteness among SPV and sponsors, SPV and Parent Company, and SPV itself bankruptcy remoteness. We systematically perfect the legal structure of SPV On the basis of bankruptcy remoteness. In the face of our Special Purpose Trust system's legal problems ,author perfect respectively the legal structure of Special Purpose Trust from the system of trustee, special purpose trust contracts and asset securitization plan system , system of securities issuance of trust benefit warrant and trust beneficiaries protection system. In the face of our Special Purpose Corporation system's legal obstacles, author perfect respectively the legal structure of Special Purpose Corporation from the system of establishment of company, the scope of business limited system, company organization structure system, securities issuance and trading system and Investor protection system.In the fourth chapter, Combining with the concrete condition of our country, to perfect SPV's legal structure, author think that we should take investor protection legislative purpose and specialized legislative approach, and we should take"two step"legislative idea where the State Council formulate asset securitization regulations at first, The Standing Committee of the NPC will formulate asset securitization law after the time is ripe. We should construct a new mode which there are Special Purpose Trust and Special Purpose Corporation through Special legislation. We should perfect the system of bankruptcy remoteness, securities issuance and trading system and Investor protection system through Special legislation. We should establish one or two special purpose corporation with the background of government, to promote healthy development of asset securitization.Summarizing the whole paper in the concluding part, and author recommends relevant suggestions to perfect the legal structure of SPV in china.