Legal Risk Prevention Of Enterprise Asset Securitization

As "the securities companies and fund management company,a subsidiary of asset securitization business management regulations "(hereinafter referred to "the regulations")was issued,enterprise asset securitization in our country experienced the process of star-up,stagnation,recovery and so on.At the end,CSRC takes a deregulation attitude which lead to the high speed development of the market.The regulations give the asset-backed SPV qualification of the special plan,which makes asset-backed special plan of our country enterprise assets become the main mode of issuing asset-backed securities.At the same time,the records of the regulatory approach made securitized products distribution relatively convenient,and enterprise asset securitization formally entered rapid development stage.Based on wind data,in 2015,enterprise asset securitization products have issued 212 products,with 204.533 billion Yuan;in 2016,392 products were cumulatively distributed,amounting to 497.563 billion Yuan,and the scale of enterprise asset securitization in our country in two years accumulatively totally issued more than 700 billion Yuan which equals to the sum total of past nine years.So far,507 products have been available,and enterprise asset securitization is seen as the next potential development in the field of finance.However,west of the Yellow River bridge toll revenue earnings special asset management plans giving priority to A file of the second phase of the "14 profit optimum 02" failed to release payment notice.This event pushes us to cool down and reconsider the market.In this article,we will take the first domestic corporate defaults case as an example,and analyze the current situation within our country about the enterprise asset securitization,the underlying assets,trade structure and credit promotion measures involved in the legal relationship and the reasons of default,pointing out the legal risks in different stages of the enterprise asset securitization and putting forward prevention advice.In the first part,I will make it clear the concept tof enterprise asset securitization under the circumstances of respectively supervision and point out the differences between the securitization of credit assets which has already developed for a long time.Then list the current relevant laws and regulations in our country.At the same time,starting from the special plan of each contract,I will analyze clearly the first domestic default case of enterprise asset securitization,and make the legal relationship and the legal structure clear.In the second part,The author will analyze the default reason of Dacheng west of the Yellow River bridge toll revenue earnings special asset management plan,and classify the typical legal risk of potential default.The author will analyze default reasons from the underlying assets cash flowing prediction deviation,financial regulatory loopholes,the difference of the funding obligations and confusion of underlying assets,the obstacles when execute the underlying asset right of pledge right.Then divide the process of ABS into different stages,and explain the three important links of enterprise asset securitization of constructing including underlying asset pool,the construction of special purpose of vehicles,and the design of the legal risks in the process of credit promotion measures.In the third part,the author will analyze the first stage of asset securitization,such as the legal risk of the underlying asset pool in the construction process,and propose counter measures,explain the basic asset requirements,the legal nature of the charges usufruct,and point out the defects of the law's in the first corporate default ABS project.Then,the author puts forward some suggestions on the legislation of the basic assets,such as strengthening the supervision of the cash flow collection,the supervision of credit rating agencies,and the access threshold of different types of basic assets.In the fourth part,based on the analysis of previous relevant regulations and cases,the author raises the prevention method of legal risks in special asset management plan in the special purpose vehicle(SPV),such as allowing the proposed transaction structure establishment of special purpose Vehicle companies SPC,double SPV design,or the German "civil code" in the private consortium the legal concept.And also the author gives legal status of special asset management plan independently,and expounds the legal principle of special purpose vehicle(SPV).In the fifth part,the author puts forward relevant legal risk prevention recommendations in another important part of China's asset securitization relating to credit enhancement.Firstly to elaborate the priority hierarchy structure of the credit enhancement measures,the essence of pledge and security o.At last the author puts forward personal views on three aspects: collocation of credit enhancement,supervision and establishment of flow reserved account and criterion of guarantor for credit enhancement.