| During the ten years from 2007 to 2016,China's real estate industry has clearly stimulated the national economy,and real estate trust financing has created tremendous benefits in this wave.Mezzanine financing,as a financing method between equity and creditor rights,has been widely used in the financing of real estate companies.With the rapid rise in house prices,in order to curb the rapid growth of house prices,the state regulates the real estate market by restricting purchases and implementing prudent monetary policies.At the same time,the liquidity risk in the real estate market has surged,and the existing trust laws and regulations have yet to be perfected.As a result,trust turmoil has emerged in the practice of innovation.Therefore,China's financial regulatory authorities have repeatedly warned about the risks of the related trust business,and through the introduction of relevant systems,the trust scale of real estate is controlled to prevent the occurrence of systemic financial risks.Real estate trust mezzanine financing is currently facing strong supervision.The China Banking Regulatory Commission has rigorously investigated whether the financing model of the combination of stock and debt complies with legal norms.The new judicial ruling also raises the fear of whether the mezzanine trust is banned.Mezzanine financing has a high degree of flexibility,and it is in line with the current financing needs of real estate companies.It is a financing model for real estate companies that should be further developed.However,as a new type of financing model,its development is not yet mature and there are many legal issues in practice.This article begins with the basic theory of real estate trust mezzanine financing,introduces the various modes of real estate trust financing and the advantages and disadvantages of mezzanine trusts,and clarifies the two basic types of mezzanine trusts.Secondly,we reviewed the macro-control policies related to real estate financing in recent years in China,summed up the related cases of real estate trust mezzanine financing,and found that the current regulatory environment and judicial environment for mezzanine trust financing are more difficult and many obstacles need to be overcome,including but not limited to The validity of the trust contract,the qualitative issue of the name and the stock debt,the trustee's violation of the obligation of fiduciary duties,and the mortgage rights of the mezzanine trust.The third part analyzes the reasons for the legal problems faced by mezzanine financing under the current legal framework in China and combines the current legal norms in China and the path of judicial adjudication,focusing on contract risks,exit risks,trustee default risks,and mortgage risks.The effects of the protection are specifically related to the impact of the guarantee clause on the validity of the contract,the impact of the determination of the shareholder status in the name and the actual debt,and the realization of the rights of different levels of the mortgagee.The fourth part proposes suggestions for improving the design of relevant systems for real estate mezzanine financing based on the legal issues summarized in the previous chapter,which mainly include optimizing the design of trading structures for mezzanine trusts,improving the superior law system for real estate mezzanine trusts,and perfecting the prudent investment system of trustees.Improve the real estate mezzanine trust mortgage registration system.Real estate trust mezzanine financing has irreplaceable flexibility and can effectively meet market demand.Although various legal issues will arise in practice due to various factors,it is not possible to completely ban such financing.The majority of legal problems lie in the lack of practice,the falsification of transaction design,and the imperfections of supporting mechanisms.As long as practical experiences are accumulated,contract terms are carefully designed,and laws and regulations are continuously improved,many disputes can be avoided. |
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