The Legal Cognizance Of "Real Sale" Of Asset Securitization In China

Asset securitization is a very important financing means in the current financial market.Its most important characteristic is the establishment of the bankruptcy isolation system,and the "real sale" is the core of the bankruptcy isolation system.To learn “real sale” we need to know the definition of "real sale",the standard of identification about“real sale”,and how to realize "real sale".This article is from the concept of "real sale",combing the relevant theory of "real sale",and the relevant regulations and practice of "real sale" in our country,analyzing the current situation about "real sale" in our country,pointing out the problems about "real sale" existing in our country,and putting forward the corresponding construction to the above problems.This article is divided into four parts.The first part mainly discusses the basic theory of “real sale”."Real sale" as the identification of the validity of the transfer of assets between the sponsor and the SPV,plays a vital role in protecting the assets from the bankruptcy of the sponsor.There are two ways to realize the “real sale”,including transferring and trust.The legal recognition mode of "real sale" is divided into formalist identification mode and substantial cognizance mode.The formalism identification mode mainly investigates whether the terms of the contract are clearly expressed or not,and the substantive identification mode should consider the intention,recourse,the retention of the rights and interests,the price of the transaction and so on.At present,our country adopts the way of substantive identification.If it can not be identified as "real sale" may lead to some risk,which is very serious for the security of asset securitization transaction.The second part summarizes the relevant laws and regulations of “real sale” in some countries.Philippines mainly regulates the "real sale" through the system of securitisation legislation;the United States relies on Securities Law and case law;Singapore adopts regulatory regulations.In this part we make an analysis of the above regulation means,and combine with our practice of “true sale”,to summarize the advantages for our country.The third part summarizes the relevant regulations on the credit assets securitizationand the enterprise assets securitization,and takes the case of Kaiyuan railway special credit asset securitization and the case of the special asset management plan of No.9Alibaba as the breakthrough point,and analyzes the existing problems of the relevant provisions of the "real sale" of our country.The fourth part,in view of the problems pointed out in the previous article,combined with the foreign legislative experience,put forward specific suggestions on how to construct the "real sale" identification standard in our country,mainly from the two angles of standardizing the operating basis of the "real sale" of our assets and the specific consideration of the relevant factors of the legal identification of "real sale",and identifying the "real sale" of our country.Nowadays,the market of asset securitization in China is becoming more and more prosperous,but it is not clear about how to realize the "real sale" between the sponsor and the SPV in transferring the assets.And the relevant provisions of the "real sale" of the enterprise asset securitization are less.The research on "real selling" has the role of promoting the development of the enterprise asset securitization to a certain extent,and also makes the design of the whole transaction process more flexible and effective.