Research On Several Legal Problems In The Securitization Of Intellectual Property

The combination of intellectual property and financial derivative instruments,realizes the securitization of intellectual property rights and achieves the purpose offinancing. Intellectual property securitization originated in1997,"the bowie bond".And it was brought in our country only ten years. As a new financing way, thepractical application of Intellectual property securitization is short of legal support.This is harm to development of the securitization of intellectual property rights inChina. In view of this, the study of securitization of intellectual property system inour country, not only has theoretical significance, also has realistic significance to thepractice.This paper will explore the issue in the legal perspective. First of all, it will clear itsessence and connotation, and clarify its legal relations. It will profound analysis legalissues and legal risk that has appeared or may occur in future. On this basis, this paperwill examine the current legal system of our country, and put forward feasiblesuggestions for securitization of intellectual property rights.Based on the actual situation and the current laws in China, this paper will mainlystudied the following contents:In the issue of the legal subject, the intermediary, mainly the agencies of creditenhancement and credit rating, is one of the characteristics of intellectual propertysecuritization. The paper mainly introduces what agencies of credit enhancement&rating and the positive role of their intermediaries. China is in such a situation: theentirety in its infancy, lacking of relevant experience, imperfect legal regulation, andthe greater legal risk, which present as the legal risks of initiator’s recourse existing inthe internal enhancement, credit rating method is not science or unified, etc. Aimed atimproving the status quo, this paper put forward these measures, includingestablishing government-supported guarantee company, intellectual propertyinsurance system, and internal and external credit enhancement mechanism; increasedlegal regulation and building system of perfect admittance and cancellation, playingthe function of regulators and self-discipline organizations, perfecting information disclosure system, and establishing credit rating system."True sale" of underlying assets and "bankruptcy risk" of sponsor that runthroughout the securitization of intellectual property rights are keys of it and directlyaffect its failure. There are risks of revoking the transaction, reframing, as well asmixing of the "true sale" of underlying asset. Construction of underlying asset poolmay be against the "anti-monopoly law". The bankruptcy risk of Special purposevehicle (SPV) and the promoters will affect the stability of the securities issuance.SPV is the core of the problem. Building reasonable SPV will help to reduce and evenavoid the possibility of bankruptcy. At the same time, it helps to improve thereliability of SPV by using strict rules of the law and independent constraints ofcontract. And the true sale of assets can ensure that the originators’ bankruptcy willnot influence the ownership of underlying assets or stability of cash flow.