Research On The Right To Receive Income Of Assets Securitization In China

In recent years,the right to receive income,as a type of the underlying assets in asset securitization,is being more and more popular in China.The category of the right to receive income expands beyond charging right of public utilities and traditional services to the right to receive income form scenic spot or public garden and tuition fee,shack-dwellers or indemnificatory housing.It provides enterprises a more convenient and flexible choice to expand financing channels and revitalize their capital.However,judging from Chinese current legal provisions,the conception of the right to receive income in the asset securitization is not defined,and whether the right to receive income is in accordance with current PRC Contract Law and other regulations related to transfer,or what is the standard to identify true sale in China,and whether the asset securitization system controlled by China different departments can guarantee the realization of the effect of bankruptcy remote is still worth exploring.Therefore,starting from the three core issues of the right to receive income in asset securitization,which is the transfer of income right,the real sale and bankruptcy isolation,this paper discusses the current situation,existing problems and corresponding improvement suggestions of the right to receive income of asset securitization in China.Thus,the first part of this paper based on the related conceptions of the right to receive income,identifies the right to receive income as the future creditor's rights by analyzing the current theories regarding the nature of the right to receive income;And the second part of this paper based on the identification of right to receive income,analyses the transferability of the right to receive incomes as a type of underlying assets,as well as the time when the transfer of the creditor's rights takes effect,and discuss whether or not the transfer of the right to receive income meet the "true sale" in asset securitization.And put forward the legislative needs of confirming the effective time and the publication of transfer the right to receive income.Then the third part of the paper draws out the identification of the true sale and its recognition standards relying on in our country,as well as our judicial practice.The purpose of "true sale" in asset securitization is to achieve the effect of bankruptcy remote,so that the originators can transfer the underlying assets' ownership and its risk,or the control of the basic assets to the special purpose vehicle(SPV).However,the asset securitization of company in China refers to an asset-backed special program is subject to the supervision of 'one bank and three commissions' which makes the subject status of SPV unclear.Thus,it requires to clarify the legal status of SPV on the legal level.During the transportation of such underlying assets,the fairness of the purchased price,and the parties'legal subject status who involved in the transaction,whether a right of recourse is set for asset credit and credit risk,and whether the right of repurchase of underlying assets is set for the originator,have important influence on the effect of bankruptcy remote.Therefore,it is necessary to establish a unified and comprehensive consideration system.Finally,the forth part of this paper outlines the routine operation regarding bankruptcy remote mechanism,and analysis the problem to be solved in double deck SPV is to achieve bankruptcy remote rather than identification of underlying assets.And proposes to establish a bankruptcy remote system in PRC Bankruptcy Law to solving the problem that the Bankruptcy Law can not be well connected with the bankruptcy remote for the department separation in assets securitization.