The Research On Asset Securitization Risk Isolation Mechanism In China

This article mainly deals with the construction of the national risk isolation mechanism of the asset securitization in practice and the legislation of the risk isolation mechanism of the asset securitization in theory, as well as the legislation of the asset securitization in representative countries. Its aim is to redefine and reconstruct the national legislation of the risk isolation mechanism of the asset securitization, thus making the process of the asset securitization in China faster and steadier.The first part which consists of three parts is to theoretically elaborate the asset securitization and the risk isolation mechanism. First, define the asset securitization from the perspective of economics and law to limit the content of the article, which means that the asset securitization is the financial asset securitization and the creditor’s right securitization, rather than the traditional asset securitization. Second, according to the analysis of the trade of the asset securitization from the perspective of economics and law, the key point of the asset securitization is the construction of risk isolation mechanism of the asset securitization. Third, according to the elaboration of theory of the risk isolation mechanism of the asset securitization and the construction of the risk isolation mechanism, bring forward two main legal elements in constructing the risk isolation mechanism:"true sale" and legal construction of SPV.The second part is to define the theory of the risk isolation mechanism of the asset securitization. According to the analysis and compare of the legislation and the theory of the risk isolation mechanism, explore the difference and causes of the difference of the risk isolation mechanism of the asset securitization between the common law and the civil law, thus leading to the foundation of the risk isolation mechanism of the asset securitization:the effective transfer from "true sale", with the help of legal construction of SPV.Based on the criterion that the effective transfer of the asset depends on"true sale", the third part is to compare the effective transfer of the asset and the construction of SPV legal model in the asset securitization countries. This mainly deals with the property law and trust law in the common law and civil law countries. In conclusion, due to the lack of the in-depth analysis of the theories mentioned above in introducing the asset securitization to civil law countries, misunderstandings have been made in the construction of the risk isolation mechanism of the asset securitization. As a result, in order to correct the past legal system of the asset securitization, we should choose the right theory and legislation in the studies of the risk isolation mechanism of the asset securitization in civil law countries.The fourth part is to elaborate the practice of the asset securitization, analyze the problems in practice and legislation of the asset securitization, thus finding ways. to reconstruct the national legislation of the risk isolation mechanism of the asset securitization. First, based on the definition of the practice of the asset securitization, the definition of SPT is not accurate. SPT is a trust model in the legal relationship of the asset transfer, rather than the model of SPV. And SPC is misunderstood as the asset securitization in secured financing, belonging to"A statement of assets securitization", not a standard securitization. Second, in the legislative and theoretical construction of the national asset securitization, we have failed in both the effective transfer of the securitized asset and the legislation of the SPV bankruptcy entity.Based on the defects in the national risk isolation mechanism of the asset securitization, the fifth part is to reconstruct this mechanism. First, we have made the same mistake as civil law countries in recognizing the nature of the two main legal elements in the risk isolation mechanism of the asset securitization, these two elements are "true sale" and SPV legal model. This mistake has led to the failure of effective transfer of the securitized asset and the legislation of the SPV legal model. As a result, our risk isolation mechanism of the asset securitization needs to be amended in both theory and legislation, only in this way can it direct the practice of the asset securitization correctly. Second, in order to solve the problems in the process of the asset securitization and better the legal environment of the asset securitization, we should redefine the theory and amend the legislation in the asset securitization.