Research On Legal Problems Of Non-Performing Assets Securitization In Commercial Banks

In 2016,the Central Bank restarted the non-performing asset securitization which shut down for nearly eight years,the development of non-performing assets securitization has a very important influence in dissolving the financial risks of the banking system,enriching the market investment varieties,activating the bank to deposit funds,and enhancing the ability of commercial banks to serve the real economy.The development of non-performing assets securitization is still short,the theoretical reserves and system construction have a certain lag.This paper will study the problems in the operation of non-performing assets securitization and propose solutions.This article mainly consists of four parts:The first part is the legal interpretation of non-performing assets securitization.This section first makes a brief comparison of the disposal of two non-performing assets in China,discusses the theoretical basis for the securitization operation of non-performing assets,then briefly discusses the practice of non-performing asset securitization in China,and points out the problems in China's practice.The second part is the analysis of the legal effect of the contract of asset transfer.This part firstly leads to three major legal problems in the transfer of basic assets: First,the quality of the underlying assets is unqualified;second,the real sales standards are missing;third,the transfer procedures are not perfect.For the first issue,this article considers that the solution lies in the implementation of a strict industry access system,on the one hand set up a series of rating standards for commercial banks classified management,only the qualified commercial banks eligible can carry out non-performing asset securitization business,On the other hand,we should set up standard for entering pool of non-performing assets,allowing only high-quality assets into the pool.In view of the lack of the real sale standard,this article proposes to build the real sale standard from four aspects.For the third question,this paper argues that judicial interpretation should be promulgated by the Supreme People's Court to clarify the effectiveness of notice.The third part is the legal construction of SPV which separate the risks.This part is the focus and difficulty of this article.It begins with three levels.The first level is to briefly explain the role of risk isolation mechanism.There are three major risks involved in the non-performing assets of commercial banks in securitization.The first is the risk that the bankruptcies of commercial banks lead to the recourse of basic assets.The second is the risk that SPV's own debt is reclaimed,which will affect the stability of the asset package.Third,the risks of different ABS products interacting with each other.The risk isolation mechanism to solve this problem is the core system design of non-performing assets securitization.Only when these three types of risks are isolated,so can the issuer's bankruptcy risk and the SPV bankruptcy risk,and the real SPV bankruptcy risk separate to usher in the non-performing asset securitization Thriving.The second level is a detailed comparison of the three types of SPVs.The third level proposes that trust-type SPVs should be adopted in China's non-performing asset securitizations based on the aboves,and some modifications are made to the trust-type SPVs.The fourth part is the improvement of information disclosure system.The basic assets of non-performing assets securities are the assets pools formed by the packaging of numerous non-performing assets.The assets are extremely complex,large and opaque.Commercial banks have a great incentive to mix various bad and doubtful debts into this pool,leading to a serious deterioration in the quality of the asset pool.Improve the information disclosure system mainly from the following two aspects: First,change the traditional way of information disclosure,build "vertical and horizontal" information disclosure model,which reveals all important information from the "link" and "agency" two dimensions.The second is the introduction of concise rules into the information disclosure system,the information disclosed should be concise and clear.