| Since the government vigorously promoted PPP projects in 2014,a number of supporting policies have been promulgated and the policies have continued to catalyze.On the one hand,it can maintain the steady growth of infrastructure investment and improve the quality of infrastructure and public services.On the other hand,it can effectively integrate social resources and alleviate local financial pressure,which has become an important means to solve the current local government debt risk.However,PPP projects have large investments,long investment cycles,limited yields,and insufficient social capital participation enthusiasm,creating financing difficulties.With the promulgation of the "Regulations on the Asset Securitization Business of the Subsidiaries of Securities Companies and Fund Management Companies",the legitimacy of infrastructure income rights as basic assets has become clearer.As a result,the securitization of PPP project income rights has been supported by policies.In most operating PPP projects,the project company generally has the right to profit from the project’s commissioning and operation granted by the government(through a franchise agreement),which means that it can provide a continuous and stable cash flow and meet the requirements of securitization.Through securitization,more financing methods can also be expanded and capital liquidity can be enhanced.However,due to the particularity of PPP projects,there are certain legal issues in the process of combining it with asset securitization.Therefore,this article analyzes these issues and further proposes corresponding legal recommendations on this basis.This article is divided into four parts:In the first chapter,the author analyzed the necessity and feasibility of PPP project asset securitization,and pointed out the existing legal problems on this basis.The first problem is that the current Chinese law lacks clear certainty about the right of income.The mainstream doctrine considers the right of income to be a "future creditor’s right." "The theory of establishment" and "the theory of actual occurrence of creditor’s rights",but if the theory of "theory of actual occurrence of creditor’s rights" is adopted to solve this problem,then in the development of asset securitization,when the PPP project income right is transferred to a special purpose carrier,the transfer will not occur The effect is that only when the project income right is actually realized can it be transformed into a real creditor’s right.The initiator’s bankruptcy occurs earlier than the actual occurrence of the income right,and the underlying assets are still within the scope of the bankruptcy property,so the bankruptcy isolation cannot be used Its role.The second problem is that my country currently lacks regulations on the standards for real sales.Considering that the franchise rights in the PPP project cannot be transferred,the promoters still retain the operation rights.In practice,they have undertaken too much guarantee for the assets for the purpose of attracting investors.If the promoter is deemed to have substantial control over the underlying assets,the sale may be deemed to be only a means of guarantee.If the promoter goes bankrupt,although the secured creditor’s right can be paid preferentially to the specific property,if the priority is not fully paid,the unpaid part can only be regarded as an ordinary creditor’s right.And the secured creditor’s right still belongs to the category of bankruptcy property.At this time,the SPV is very passive and can only realize its claims in accordance with the bankruptcy procedure,and there is great uncertainty about whether it can be realized.The third problem is that there are still disputes over the dispute resolution of PPP contracts.In practice,there are many cases where the government abuses administrative privileges,arbitrarily alters or terminates contracts,which makes PPP contracts face greater uncertainty,which leads to administrative agreements.Loss of credit,the inability to attract the participation of the public,and it is difficult to promote the development of securitization.The second chapter focuses on the first question,starting from the qualitative analysis of the right to income,and analyzes various theories such as "future creditor’s rights theory","capacity theory","real rights theory",etc.The author believes that "future creditor’s rights theory" is the most appropriate Analyzed the future creditor’s rights "effective when the contract is established" and "effective when the creditor’s rights actually occur".It is recommended that my country clearly stipulate the nature of the right to income and adopt the effective when the contract is established.In the legislation,the future creditor’s rights system is constructed by clarifying the distinction between actual creditor’s rights and future creditor’s rights,the transfer effectiveness of future creditor’s rights,and the publicity system of future creditor’s rights.The third chapter focuses on the second question,and analyzes the theory of "true sale" and existing legal regulations.It points out that the legal standard of "true sale" in my country is lacking.Therefore,it should be clarified on the basis of drawing on the US "safe harbor" system.The standard for real sales in our country.In addition to considering real transaction intentions and fair transaction considerations,the theoretical standards affecting real sales should also be referenced,and the regulations on recourse issues and residual profit extraction issues should be improved to enhance clarity and operability.In this way,the project company can compare the standards and reasonably set the contract clauses when transferring the right of income to achieve the purpose of real sales,avoid hidden legal risks,achieve true bankruptcy risk isolation,and escort the smooth development of my country’s asset securitization.The fourth chapter analyzes the government’s role in the securitization of PPP project income rights assets.In order to prevent the government’s default risk,the author believes that the legal risk clauses in the PPP project contract should be refined and included in the contract.The clause focuses on the protection of the rights and interests of social capital and the reasonable establishment of contract flexibility clauses for PPP projects.Secondly,it is necessary to build a mechanism for exercising government preferential rights with procedural fairness as the center.The government establishes a consultative and deliberative body composed of multiple backgrounds.The formulation and modification of PPP agreements must be approved by the consultative and deliberative body,thereby giving the government’s administrative preferential rights Regulations shall be carried out to facilitate the further development of asset securitization of PPP project income rights. |
