Study On The Legal Matters Of Bankruptcy Remote Mechanism Of Enterprise Asset Securitization

In1970s, Asset-backed Securitization was born in the United States, as a safer and more effective financing measure than the traditional one. Because of its exquisite design, unique structure, transaction security, Asset-backed Securitization boomed quickly. Bankruptcy-remote mechanism is the core of Asset-backed Securitization, that is related to the overall trade can achieve the desired effect or not. And there are two main aspects in the mechanism of the construction:the first one is the true sale of underlying assets, the second is the establishment of special purpose vehicle.As a result of divided operation and divided supervision, Asset-backed Securitization in our country is divided into the securitization of credit assets and the enterprise asset securitization two modes. In recent years, the former has developed rapidly in China, while the latter affected by the financial crisis has stagnated. In March2013, China Securities Regulatory Commission issued the "regulations on asset securitization business of securities companies", this is the sign of restarting enterprise asset securitization. Of course, no matter what kind of model of asset securitization, Bankruptcy-remote mechanism is its core structure.This article mainly consists of four parts:The first part is the introduction of the concept of asset securitization, and narrates the general operation process as well as enterprise asset securitization in China’s development.The second part is the specific analysis of Bankruptcy-remote mechanism, and four dimensions are discussed, mainly from the concept, significance, operation mechanism and the particularity of Bankruptcy-remote mechanism in the enterprise asset securitization.The third part is the main body of this article, to induce and reorganize the problem of three cases in the introduction, to set up two aspects of analysis from the true sale of underlying assets and the establishment of special purpose vehicle. In terms of underlying asset transfer, this article explores the identification standard of true sale from the underlying assets legal attribute and the whole transaction point of view, and points out that the true sale is the guarantee of Bankruptcy-remote mechanism. In terms of establishment of special purpose vehicle, mainly studied the special asset management plan with Chinese charact-eristics. Its legal issues are:what is the special plan, the cognizance of legal relationship in special plan and the legal status of special plan problem.The fourth part:according to the existing problems of our country enterprise asset securitization Bankruptcy-remote mechanism, combined with relevant China’s laws and regulations, especially the "regulations on asset securitization business of securities companies, this article analyses and evaluates the existing system, and tries to put forward some suggestions to perfect Bankruptcy-remote mechanism.