Legal Study On The Sufruct Securitization Of PPP Project

At present,the background of steady progress in the interest rate marketization in China,asset securitization is conducive to revitalize the stock of the economy,improve economic efficiency,broaden the financing channels for enterprises,is China's new normal alleviate the slowdown in economic growth,reduce financial institutions and the financial risk of the enterprise,improve the proportion of direct financing and social effective construction tools one of the multi-level capital market.December 2016,to implement the "CPC Central Committee and the State Council on deepening the reform of investment and financing advice" and other documents of the spirit,promote the cooperation of the government and social capital(PPP)project asset securitization development,development and Reform Commission and the Commission jointly issued "on the traditional infrastructure of government and social capital cooperation(PPP)Notice project asset securitization related work".Since then,after a long period of practice and demonstration between the central government and enterprises,China's PPP project asset securitization officially landed.However,due to the particularity of PPP project income right,and the relevant laws and regulations of asset securitization in our country is not perfect,it has great legal risk in practice.On the one hand,in the current user fee PPP project originator(promoters)produced a franchise based on fee income right,whether from the franchise and be transferred to special programs and become the basis for its assets of asset securitization and its property right is the future debt assignment,if is the asset securitization and whether the implementation of "true sale".On the other hand,as the main mode of the asset securitization in our enterprises for securities companies and fund management companies,relying on its own asset management business under the special plan for the special purpose vehicle(SPV).However,because the legal status of the special plan itself is not independent,but attached to the securities firm or its fund management subsidiary,which leads to the whole process of foreign and China enterprise asset securitization's recognized asset securitization theory and practice there are very different.In this case,it is possible to realize the true sale of the underlying assets,and thus achieve risk isolation.Therefore,the author through a typical case of PPP project in practice,analysis pointed out that the law of risk,and analyze the related basic theory of asset securitization,and then put forward the suggestions,hope to provide help for the future PPP project asset securitization legislation.In addition to the introduction and conclusion,this paper is divided into three parts:The first part,the author analyzes the typical case of "Qusheng return special plan,introduced the" Qusheng return special plan "transaction structure,mainly involved in the mechanism,based on the assets and operation process etc..This paper makes a brief analysis of the problems,and analyzes the legal risks,so as to pave the way for the following analysis of legal risk analysis.The second part is mainly from the right to return as the legal attribute of basic assets and the unknown future claims assignment of two levels of detailed analysis of the PPP project usufruct as the legal risk of basic assets;the first legal attribute of the right to return unknown dispute were analyzed,through its legal relationship with the franchise.A study of legal nature of PPP project usufruct,and its nature is defined as "future claims".Secondly,in view of the fact that there is no future creditor's rights in the existing civil law theory of our country,the author makes a comparative analysis of the future creditor's rights in foreign countries in order to discuss whether the future creditor's rights are transferable.Finally,the author points out the legal risks led by our existing securities companies and fund management companies or subsidiaries of the "special plan" itself,namely the legal status is not clear,"true sale" factors such as lack of standards.The existence of these legal risks has seriously affected the risk isolation effect of PPP project usufruct securitization.The third part is discussed according to the analysis of the two parts,combined with foreign asset securitization development experience,through the analysis of the legal nature of the project,and put forward suggestions on tolls usufruct securitization process,perfecting the legal environment and the asset securitization financing market.For example,in the civil law,the legal attribute of clear charges usufruct itself and the future credit assignment and transfer of creditor's rights system of the public can make credit asset transfer more standardized;also can be through the establishment of "true sale" standard to ensure independence of the basic property of special plans,to prevent the legal risks in initiating people are listed as the bankruptcy of the bankrupt property.