On The Perfection Of SPV In Asset-backed Securities

Asset-backed Securities(ABS)is a capital operation mode that converts assets that lack spot liquidity but can produce stable and predictable cash flows in the future into securities,and it acquires spot cash flows by investors' subscription.The core of Asset-backed Securities is bankruptcy risk isolation,and the operation path is to transfer the basic assets supporting securitization to the Special Purpose Vehicle(hereinafter referred to as SPV),so as to make the basic assets independent of the overall credit assets of the initiator(also known as the "Original Equity Holder").Therefore,the construction of SPV is the key factor for successful bankruptcy isolation.In the practice of Asset-backed Securities in various countries,the main forms of SPV are Special Purpose Trust(hereinafter referred to as SPT),special purpose company and special purpose partnership.Because of the unlimited liability of the partnership system itself and the requirements of the Company Law of our country on the corporate governance structure,the issuance of securities and the double taxation,the SPT mode is widely used in the practice of Asset-backed Securities in our country.The development of Asset-backed Securities business in China is relatively late.In recent years,it has been promoted by administrative supervision.At present,the development of Asset-backed Securities business is rapid.But there are still many problems in practice.For example,the vague treatment of the definition of "trust" in China's "trust law" leads to unclear legal principles of trust,unclear attribution of basic assets transferred by means of trust,inconsistency between the "trust law" and the relevant provisions of "contract law" and "bankruptcy law",which easily leads to the exercise of the right of bankruptcy revocation,thus undermining the independence of trust property,and so on.There are risks such as unclear legal status and the need to achieve bankruptcy segregation in the use of the "asset-backed special plan".However,under the current legal system of our country,it is still not feasible to improve the SPV construction,SPV of special purpose company and limited partnership model.In view of the problems of SPV in Asset-backed Securities,the only way to solve them is to give SPT legal personality.The organizational nature of SPT itself,the nature of legal person and the legal person elements in positive law all show that it is feasible to grant SPT legal personality.At the same time,under the limited research,this paper puts forward the specific system design of giving SPT legal personality.