The Legal Research On Special Purpose Vehicle Of Assert Securitization

Asset securitization has a unique structure,separating the subject credit and asset credit of enterprises,and expanding the existing assets of the underlying assets for financing into the future cash flow,the two breakthrough innovations of which have expanded the main wide range of financing enterprises,and increased the number of enterprise financing.Asset securitization is creating the stable environment for China's supply-side reform by means of financial deleveraging,with its unique advantages.However,the rapid economic development is often accompanied by the lag of the legal system,and the current separate management and separate supervision system of China has been out of touch with the actual pattern of the current financial industry,therefore,the idea of equal supervision of the same financial business should be established,in order to avoid the occurrence of regulatory arbitrage.Asset securitization has the unique advantages that its structure has the function of bankruptcy-remote,thus realizing the separation of subject credit and asset credit.The setting of Special Purpose Vehicle(SPV)is a key element in ensuring bankruptcy-remote.This paper focuses on realizing the function of bankruptcy-remote,and discusses the problems and advises of SPV.Of course,the market is complex,and we shall take into account not only a kind of value orientation of bankruptcy-remote,but also other factors such as cost,procedure,and tax and so on,when choosing the appropriate SPV,thus to find an appropriate balance point between function realization and institutional feasibility,and further to expand the practical value of the paper.The paper introduces the basic theory of SPV from several perspectives such as its concept,processes,legal nature and organizational forms,and also explores the path of perfecting SPV,combined with the experience of the United States,Japan and Taiwan of China in asset securitization.This paper mainly analyzes the exposed problem of unknown negative trust orientation of trust-type SPV in securitization of credit asset,and discusses the lack of the civil subject status of the asset-support special program in the "General Provisions of Civil Law" during the securitization of enterprise asset,and the legislative positioning conflict with "Regulations on the Supervision and Administration of Securities Companies".The existence of these problems will affect the realization of bankruptcy-remote.For each problem,the concrete improvement advises are put forward in the fourth chapter.The author believes that the Special Purpose Trust(SPT)should focus on the further improvement of trust registration,process,publicity and other supporting measures,based on the "Measures for the Administration of Trust Registration" issued by China Banking Regulatory Commission(CBRC),and clear the negative trust orientation,so as to protect the effect of bankruptcy-remote;Asset-support special programs should accumulate the experience through double SPV pilot,and then focus on the unified formulation of adjustment norms in higher levels at the right time,to get rid of separate operation and achieve cooperative supervision.Then,combined with the existing "Company Law" and "Securities Law" and so on,this paper discusses how to learn the experience of Taiwan of China,to establish the Special Purpose Company(SPC)and establish the "Double Track System",for providing more free choice for the market subject.At present,in terms of the system level,it is beneficial to summarize the useful institutional experience at the pilot stage,and formulate the unified adjustment specification of asset securitization at a higher level,relying on the newly established Financial Stability and Development Commission of the State Council in 2017.