Study On The Rights To Real Estate’s Benefit

Asset securitization is an important way of direct financing for the corporate finance, and is becoming an important means of asset management and risk management. In China, the research, legislation and practice of asset securitization started late relatively, during the volatility rapid development in recent years, the securitization of rights to real estate’s benefit, road bridges, road tunnels or road crossing for example, has greater potential of expansion, especially.However, the contract law, bankruptcy law, financial regulations and other legal basis and specific provisions on asset securitization have lots of defects, which resulting that the most central problems about securitization of rights to real estate’s benefit in the definition and transfer of the underlying asset, in construction of SPV, true sales and bankruptcy isolation, lack of a clear, complete and appropriate legal support, and the resulting legal uncertainty and their risks are hindering the development of asset securitization.This article will focus on the securitization of rights to real estate’s benefit under the Chinese mainland legal rules, will not only state the foreign theories "on paper", but take the local issues as the starting and ending point, demonstrate these core issues with the combination of both Chinese legal rules and foreign theories. This paper has three parts:the preface, text and conclusion. Among them the text is divided into the following five chapters:Chapter I is an overview of the securitization of rights to real estate’s benefit:firstly, this chapter summarizes the basic asset securitization theoretical system of "a core and three support", the status quo practices as "Three Kingdoms" about securitization of credit assets, securities companies asset securitization, asset-backed notes; secondly taking Guan Shen High Speed Special Plan as an example, this chapter analyzes the main transaction bodies and core legal relationships, and put forward the advantage and expanding potential of the securitization of rights to real estate’s benefit.Chapter Ⅱ focuses on the structure and legal nature of the rights to real estate’s benefit,taking the toll highway as an example, through the deconstruction the right to charge tolls and the right to the benefit of charge tolls, concluding that " the nonpublic enterprises’right to charge tolls charges "is the suitable basic assets, which in theory belongs to the "future creditor’s rights", and characterized by "uncertainty".Chapter Ⅲ focuses on the transfer of the basic assets:from the comparative study on the alienability of rights to real estate’s benefit, the chapter reveals the essence "alienability", and focuses on the fixed point when the ownership transfers, the internal validity and external effect of the transfer contract. Due to the lack of Chinese law, this part comes to the conclusion based on theoretical analysis and comparative study.Chapter Ⅳ focuses on "bankruptcy isolation" from the perspective of "Special Planning" and "true sales", pointing out that the "Special Planning" lacks of subject status, lacks of supporting from "trust law" and "bankruptcy law", and the building of Chinese "true sales" rules should be based on the dispersed "contract law" and "bankruptcy law" provisions In securitization of rights to real estate’s benefit, the issue of "bankruptcy isolation" depends on the point when the rights to real estate’s benefit come into existence.Chapter V puts forward some macroscopic suggestions on the improvements of law on securitization of rights to real estate’s benefit in our country:the first is to improve the classification, transfer and publicity system of "future creditor’s rights" in contract law; the second is the to release trust from the separated operation in the financial supervision level and reconstruct the trust relationship, of securitization of rights to real estate’s benefit, especially with the Declaration Trust; the third is to make special provisions on asset securitization in the bankruptcy law; the fourth is to improve the rules of SPV construction and "true sales" on the asset securitization’s own level.