The Legal Construction Of SPT In The Securitization Of Real Estate Mortgages

Real estate mortgage securitization originated in Germany is now the origin of asset backed securitization.It is the mortgage securitization centered on the circulation mortgage,which is based on the independence theory of real estate mortgages.The other securitization is centered on real estate mortgage claims represented by the United States,such as the securitization of residential mortgage loans,which is securitized with secured claims and mortgages.The real estate mortgage in our country is the collateral security right,and the mortgage right belongs to the creditor's rights.Therefore,the securitization of real estate mortgage in China adopts the American mode,with real estate mortgage claims and mortgage rights securitized,namely the securitization of claims with mortgage rights.Securitization of real estate mortgage,that is,debt-backed securitization with mortgage,is a kind of structural financing that transforms the lack of liquidity mortgage loan claims between banks and borrowers through certain architectural arrangements into free-floating Securities between different people.In the process of securitization of real estate mortgage,special purpose vehicle(abbreviated as SPV)is at the core of the whole securitization connected with many legal entities such as promoters,investors,credit enhancement institutions and rating agencies,loan service agencies and fund custodian institutions,which is the key to the securitization process.SPV mainly have three kinds of modes,special purpose company(abbreviated as SPC),special purpose trust(abbreviated as SPT),and special purpose partnership(abbreviated as SPP).Because the partnership does not see more in addition to the United States,based on the comparative analysis of the current legal environment in our country this paper concludes that special purpose trust is the best choice in our country at present.So,this article mainly focuses on special purpose trusts,and discusses the validity of legal documents based on special purpose trusts,its own legal control,the legal relationship of the subjects involved in securities and information disclosure.First of all,normative legal documents have low legislative levels and limited legal effects;Secondly the legal supervision legislation of special purpose trust in our country is blank;thirdly,there are several legal relationships in the process of securitization of real estate mortgage,of which the legal relationships between promoters,SPT and investors are the most basic and the most important.In the process of transferring real estate mortgage claims into the SPT,how to transfer the mortgage claims and mortgages.As for the transfer of creditor's rights,the contract law stipulates the principle of notification of transfer.If each debt is notified,it is bound to cause a huge cost.For the mortgage,according to the principle of the separation and the principle of property law,whether the mortgage is to be obtained by registration.How does the legal nature of asset-backed securities be defined and how can investors circulate after purchasing asset-backed securities in the process of issuing asset backed securities by SPT?Finally,it analyses that there are many subject of disclosure obligation in the information disclosure.It has mode limitations and does not establish the true information transmission mechanism and the corresponding legal responsibility.This paper uses the method of literature research,comparative analysis and empirical analysis,and examines the relevant legislation outside the region to propose that our country should set up a special purpose trust based on the principle of protecting investor interests and specialized legislation.Then,it puts forward some suggestions on the lack of internal monitoring,the problem of the transfer of rights,the issue of securities issue and the disclosure of information.