Researches On Legal Regulations Of Securitization Risk Of China's Commercial Banks Non-performing Assets

Commercial banks non-performing asset securitization as a new type of structured financing and innovative financial instruments in our country has gone through the trial stage(before 2005), the first round of the pilot phase(2005--2008), the lag phase(2008-2015), in the current balance of non-performing bank loans rose sharply in the background, our country in March 2016 to restart commercial banks non-performing asset securitization pilot work, a new round of NPAS is brewing tide comes, it carried out help to improve the capital adequacy ratio of commercial banks to ease liquidity pressure, reduce operational risks of commercial banks, financial product categories rich and active financial markets.As an important part of the securitization of credit assets, due to the low level of credit asset base, cash flow instability and asymmetric information and other reasons, NPAS easily lead to social and economic risks. Therefore, risk and risk regulation of commercial banks has become NPAS facing core issues. Legal and financial risk management tools are institutionalized, legal and risk having a obvious interaction, can take advantage of the law to regulate the risks of NPAS. In this paper, the context analysis, historical analysis and comparative analysis, about the risk of legal regulation conducted in-depth study:First of all, at this stage to carry out NPAS necessity theoretical and practical feasibility of having on our country can continue to improve and deepen the NPAS system of commercial banks in financial innovation under a pilot basis.Secondly, from the perspective of risk considerations, NPAS risk isolation mechanism mainly through asset "true sale" and building special purpose vehicle(SPV) to achieve. In practice, since the "true sale" and the SPV system is not yet perfect, easily lead to "the merged entity" risk and the risk of bankruptcy of the SPV itself. At the same time, the structure of complex securitization transactions, transaction subject and complexity of the legal relationship, in the securitization process is also prone to credit risk, market risk, liquidity risk and operational risk. Conflict existing laws and regulations and imperfect legal system, but also amplified the risk of their own legal loopholes and legislative defects. In addition, NPAS will be subject to double taxation risk rating from risk, in violation of "tax neutrality" principle to bring the risks involved and to terminate and confirm the transfer of assets accounting.Again, drawing on the regulation of non-performing asset securitization risk, this article focuses on the asset securitization and risk prevention features of the United States and the United Kingdom, Japan and Korea. Learn from the perspective of our country can learn from foreign SPV model, "true sale" legal standards, information disclosure system, financial regulation and the corresponding tax and accounting system.Finally, on the Legal Measures Regulations risk country on the legislative level should accelerate asset securitization legislation to clarify the existing laws and regulations conflict, optimization SPV system, a clear "true sale" of the law that standard; the same time, from the information disclosure system construction and strengthen risk control measures to regulate risk. In addition, in the construction of supporting system, but also improve the credit rating system, taxation and accounting systems, the risks from a full range of legal regulation NPAS brought.