| Housing mortgage loan securitization (securitization for short) is an exquisite and complicated financial innovation emerging in the 1960s. Because of possessing the characteristics of asset credit financing, structured financing and off-balance sheet financing, it is remarkably different from the traditional financing instruments and has evolved into a new financing instruments prevailing in global capital markets. Securitization is not only an economic problem, but also a legal problem. Many countries, including both common law countries such as U.S.A., U.K. and civil law countries such as France, Italy, Japan, have formulated complete securitization laws. In the operation of securitization, legal systems play an important role. However, by studying Chinese legal environment, we can find that the ill-fitted laws and the blankness of legislation are the major obstacles to securitization. Without suitable legal environment, securitization cannot be put into effect in China. So, the thesis focuses on the subject of designing practicable securitization laws for China and analyzes the legal issues concerning securitization in order to explore the ways of practicing it.Besides the preface (chapter one) and conclusion, the thesis comprises four chapters. Main points are as follows:Chapter two investigates the legal issues related to the construction of special purpose vehicle (SPV). The fundamental function of SPV is to purchase, hold and manage loan assets, and issue mortgage-backed securities (MBS), which are backed by the cash flows of the assets. SPV can isolate the risk of the assets from the risk of originator and safeguard the investors' interests. So SPV must become a bankruptcy-remote vehicle, which should be isolated from both the risk of bankruptcy of the originator and that of itself. We can take measures from two sides. On one hand, we should choose appropriate models of constructing SPV. According to Chinese legal environment, trust organization and solely state-owned corporation are desirable. On the other hand, SPV should avoid the risk of bankruptcy coming from itself. The thesis points out that law should impose restriction on the business line, liabilities of SPV, and limit SPV and its creditor to apply for bankruptcy. Chapter three elaborates the legal issues concerning transfer of loan assets to be securitized. After the transfer, the assets will not be affected any more by originator's financial situation and become bankruptcy-remote. Currently, scholars have different opinions on the legal attribute of the assets transfer. The thesis discusses in detail the principle of release guarantee, pointing out that the principle cannot explain the essence of the assets transfer. The thesis concludes that the legal attribute of transfer should be "true sale". So-called "true sale" requires that all rights, risks or controlling power should be transferred altogether to SPV from the originator. To achieve the object of "true sale", the first factor to be considered is the style of transfer and relevant legal requests. The thesis analyzes such three kinds of styles as sub-participation, novation and assignment. Of the three kinds, only assignment is feasible. Then another factor is the criterion of judging the "true sale". In this respect, U.S.A., U.K. and the Basel Committee on Banking Supervision have all formulated vivid criteria and the experience of them deserves much applause. To integrate all these criteria, we may consider this from the following aspects: such as we must make sure that the recourse of the originator should be in an appropriate range as far as the law permits; SPV has the controlling power of the debt assets; the price of the assets is the result of fair deal in the light of the market price, and the price is certain; repurchase should not affect the interests of the investors and originator should not take the risks of assets by the way of repurchase.Chapter four analyzes the legal issues of the issuing of MBS. As for SPV that is a trust orga... |
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