The Legal Mechanisam Study Of Bankruptcy-remote Mechanism Of Asset Securitization

Since asset securitization was first used in American in 1970 s, it was very popular to the world capital market and has become the mainstay of financial market in the new ages gradually by its delicate structure design and function. As the core of asset securitization, the accomplishment of bankruptcy-remote mechanism is the key element of whether asset securitization could go smoothly or not. While from the aspect of law, bankruptcy-remote mechanism is consisted of two major factors: the achievement of true sale of basic asset and establishment of the independent special purpose vehicle, which are decisive to recombination of risk and profit, showing the charm of asset securitization. In addiction, with the introduction of the policy that “optimize the allocation of financial assets, making full use of incremental and revitalizing stock assets”, the asset securitization business has received unprecedented policy support, having plenty room to grow and to develop potential. Whereas the short of practical experience, the insufficiency of relative legal mechanism would led to inadequacy of bankruptcy-remote mechanism core function development, leaving hidden trouble to the healthy long term asset securitization business of our country. So this essay is aim to search the way to solve the existing problems by deeping research much more comprehensive foreign legislation experience of true sale and special purpose vehicle.Addiction to the introduction, there are four sections:The first section is the research of asset securitization’s bankruptcy-remote mechanism basic theory, mainly about summarizing the reason why bankruptcy-remote mechanism is the core connotation of asset securitization by analyzing different concepts of asset securitization, and introduce its process on the basis that choose “process theory ” as the concept of it.The second section is the study of operation mechanism of asset securitization’s bankruptcy-remote mechanism,which is divided into two parts about three aspects, including true of sale and special purpose vehicle. Wherein as the primary tache of true sale of asset, the effective transfer of asset can be divided into four patterns,such as trust, assignment, sub-participation and innovation according to the cost of financing, the level of bankruptcy-remote and the feasibility of operation. In consideration of the complexity of securitization’s deal structure, in order to avoid the re-identification, the criterion of true of sale is the key to solve this problem. Making a general survey of other countries’ regulation about true of sale, risk assumption and actual control are the main content of it. From the aspect of legal issue of special purpose vehicle, there are two general models, special purpose trust and special purpose company. The bankruptcy-remote of themselves and precaution substantive consolidation could be achieved through system design.The third section is the review of bankruptcy isolation system of our country. Analyzing the reason why we choose special purpose trust from the legal issue and giving a comprehensive understanding about the status and problems of bankruptcy remote system of credit asset secritization and security company asset securitization from the level of basic asset property, ownership and the identification of true of sale.The fourth section is the conception that how to perfect the legal system of asset securitization bankruptcy-remote mechanism of our country. In this part, the ripe theory and practical operation experience of bankruptcy-remote system analyzed in the second section are used for reference to provide some support for the advice that how to perfect the asset securitization bankruptcy-remote system from the aspects of setting on special purpose vehicle, transfer of asset and the identification stander of true of sale.