Research On The Legal Problems Of The Securitization Of Intellectual Property In China

With the rapid development of the practice of asset securitization in the world and the continuous expansion of the range of basic assets,the securitization of intellectual property has come into being.Since David Bowie's case of securitization,the practice of IP securitization in the United States has been booming and has gradually expanded to the fields of patents and trademarks.Japan also laid the foundation for the rapid development of IP securitization by formulating and amending the relevant laws.However,our country is also constantly deepening the legislation of asset securitization.The scope of basic assets is expanding continuously and the auditing procedure is simplified,releasing good signals for the practice of IP securitization.The case of SMI Corporation box office securitization is the first case in China that successfully securitized the future receipts of box office.This case used its expensive and complex transaction structure design makes its basic assets in line with China basic assets provisions.Although its transaction structure design is of practical significance,it also reflects the problem of insufficient legal support for the basic assets of intellectual property in China,including: The imperfect standard of basic assets access,the lack of legal support for such issues as the complicated status of intellectual property rights,the instability of values and the need for sustained maintenance of values.The case of Haiyin future accounts receivable securitization exposes another legal risk of our country's IPR securitization.Judging from our practice,due to the "false sales" of basic assets,the situation that SPV cannot achieve bankruptcy has occurred from time to time.The transfer of "claims in the future" also lacks legal support.The current legal provisions in our country still need to be further elaborated on how to avoid the influence of "deceptive transfer" of basic assets on the bankruptcy and isolation,how asset management plans and trusts can truly achieve bankruptcy isolation.However,in the "Ye Wen 3" box office securitization case,actual controller Kuailu Group maliciously manipulated and intended to benefit from box-office fraud,causing losses to investors.The case exposes the lack of such mechanisms as information disclosure,value assessment,credit rating and intellectual property rights registration in our country.At the level of legal advice,the author suggests to improve the standards for the access of basic assets,which is reflected in the detailed provisions on the number and type of intellectual property and the intellectual property with particularly complicated rights.Establish athird-party insurance mechanism and alternative service mechanism for intellectual property,provide risk instructions to investors and safeguard the value of intellectual property.In terms of securitization and bankruptcy,the author proposes to clarify the transferability of the claim in the future and to make specific provisions on the effective conditions and time of Future Credit-assignment.To ensure that the trustee of the trust ownership of the fiduciary property,and clear the legal subject of special asset management plan status.At the same time,it should also make detailed provisions on the behavior elements of fraudulent transfer and the subjective aspects of fide third party.As for the improvement of the supporting mechanism,the intellectual property registration system needs to be consummated at first.The author suggests that our law need to clarify the legal status and validity of copyright registration,unify registration procedures and registration standards,and establish a unified information registration system.For the evaluation mechanism of intellectual property value,we should encourage intermediaries to play a more important role in the development of evaluation models and regulate its legal liability for due diligence and moral hazard.For the credit rating mechanism,the credit rating agencies should be supervised and a special valuation model and rating standard should be established.For the information disclosure mechanism,the author proposed to expand the scope of the legal subject of information disclosure,increase the content of information disclosure,and clarify the legal subjects' responsibility of information disclosure when they mislead public with disclosing false information or failed to disclose the relevant information in a timely manner.