| Asset securitization of PPP projects is proposed as the government and social capital continue to develop in depth while facing the problem of own refinancing.As a structured financing method,asset securitization can transfer the original equity holders’ basic assets to special purpose agencies(SPVs)through "real sales" so as to realize the recovery of funds.For PPP projects,most of them Involving large infrastructures such as energy,transportation and water conservancy,enterprises need to invest a large amount of funds in the early stage and more funds are converted into real ones that can not be used for other purposes.This has caused some problems for the sustainable development of enterprises.Therefore,A refinancing way to get out of this predicament,and the structural characteristics of asset securitization exactly respond to this demand,providing enterprises with a means of capital withdrawal.May take into account the advantages of asset securitization,December 21,2016,the National Development and Reform Commission together with the Securities and Futures Commission released "on the promotion of traditional infrastructure and government departments and social capital(PPP)project of asset securitization related work Notice "(Development and Reform Investment [2016] No.2698),making it clear that the asset securitization of PPP projects is an important mechanism for ensuring the sustained and healthy development of PPP.Under the impetus of the policy,just three months later,the first batch of three PPP asset securitization products was approved and officially implemented.Although asset securitization has natural advantages for the refinancing of PPP projects,it should be noted that due to the particularity of the PPP project itself,there is a considerable defect in the asset securitization system in our country.There are still some legal issues.Among the user-paid PPP projects,what kind of legal attributes does the PPP project company enjoy based on the franchise rights,whether it can be transferred independently from the franchise rights and whether it can be securitized There is a certain degree of doubt as to how to separate the inherent assets from the original equity holders and the plan manager from the bankruptcy isolation effect required by the asset securitization.Therefore,based on the aforesaid problem orientation,this article takes the first batch of approved PPP earning securities securitization project "Special Plan for Assets Acquisition of Heat Gains and Acquisition Rights of Huaxia Happy Gu’an Industrial Park PPP Project"(hereinafter referred to as " Huaxia Happy Plan ")as the blueprint,in-depth analysis of the transaction structure,clear legal issues that exist,and problem-oriented,put forward relevant legal advice and countermeasures.This article is divided into four parts altogether.The first part introduces the general problems of the securitization of the profit-earning rights of the PPP project,and expounds the general situation and theory of the PPP and the asset securitization respectively.By analyzing the special case of the Chinese special happiness project,the structure of the transaction shows that the transferability of the project proceeds as the base asset and the effective date of the transfer are in doubt.The bankruptcy isolation effect of the special asset-backed plan is in doubt.According to the legal issues raised in the first part,the second part mainly discusses one of the problems: the basic assets-the issue of the fitness of the PPP project right of return,by analyzing the legal attributes of the right to return the PPP project,Of private property,with independent property value,can be distinguished from the franchise,and at the same time,the nature of the proceeds of the PPP project is the nature of future claims,which corresponds to the existing claims.Since China’s law does not provide any provisions on future claims,Its transferability and the time point of entry into force can not be determined.In view of the fact that the core components of the underlying assets are transferable,the issue of the transferability of the proceeds of the PPP project needs to be clearly defined by the legislature in our country.After analyzing the issue of the eligibility of basic assets,the third part of the article further explores the problem of bankruptcy and isolation of basic assets,original rights holders and plan managers.Due to the lack of "real sales" standard in our country,Transfer to make an effective assessment,resulting in the basic assets can not be surely distinguished from the original assets of the original owners,at the same time,China’s financial industry,operating separately,the separation of regulatory system led to the enterprise asset securitization can not use the trust model,with China Distinctive asset-backed special plans fail to acquire basic assets because they do not have an independent legal entity status,so that the underlying assets can not be distinguished from the planned assets of the plan manager,thereby affecting the bankruptcy effect.Based on the revelation of the first three chapters on the legal issues concerning the securitization of profit-earning rights of PPP projects,the fourth part proposes solutions from the four aspects of basic assets,SPV,transfer rules and the safe harbor system respectively,and clarifies that our country needs to clarify the legal future Transfer of creditor’s rights,reference to the retroactive provisions determine the effective time of the transfer,at the same time using the registration system to resolve the transfer of the effectiveness of confrontation;unified application of the trust model,to get rid of the uncertainty of bankruptcy isolation;establish real sales standards to resolve the effectiveness of the transfer Problem;learn from the extra-territorial safe harbor system to better ensure the promotion and development of asset-backed securities in PPP projects. |
