| Asset securitization is used for the rights and interests(original)will be lack of liquidity but can produce in the future the foreseeable stable cash flow of assets,or assets collection(in law is essentially)sold to special purpose vehicle(SPV),by its structure through certain arrangements,separation and restructuring of the returns and risk of assets and assets of the credit,A financial instrument converted into freely floating securities backed by cash flows generated by assets and sold to financial markets in a series of transactions.Since the introduction of asset securitization as an innovative financial instrument in China in 2005,the scale of asset securitization has been continuously expanding with decades of development,among which the pilot work of credit asset securitization is in full swing.From the perspective of China’s existing legal system,it may be the best choice to construct the special purpose vehicle in the trust mode.Trust property has the advantage of natural independence,and it is independent of the inherent property of the trustor,the inherent property of the trustee and the inherent property of the beneficiary.The independence of trust property and the core mechanism of asset securitization--bankruptcy isolation function are two sides of the same coin.Therefore,in the social practice of asset securitization in China,most of them choose the mode of special purpose trust to form the special purpose carrier,which is logical.Although special purpose trust has its own natural and unique advantages,the trust system originated from the Common law system and the common law system is divided into equity law,that is,the foundation of the trust system under the Common law system is a dual ownership structure.Our country belongs to continental law system country,the civil law of civil law system foundation for the unitary system of ownership,the basic principle of real right is one thing one right principle,so the civil law countries in the introduction of the system when deliberately avoided the duality ownership structure of Anglo-American law system,but avoid all cannot fundamentally resolve the conflict between two legal systems,The result is inevitable obstacles and discomfort.Credit asset securitization in our country for decades,accumulated a wealth of practical experience,but as a result of the trust system is exotic,in some areas the provisions of some conflicts with the existing legal system sometimes show the legal norm in the vague unknown,making widely promoted in our country,the original is beneficial to the development of social financing system,and is hampered by a certain.Therefore,in this case,this paper puts forward some simple views of its own,hoping to help the financial innovation to be better regulated and more conducive to the protection of investors’ interests and transaction security.Structurally,this paper is mainly divided into the following four parts:The first part is an overview of SPV bankruptcy isolation in asset securitizationThis part contains two aspects.On the one hand,it introduces the theoretical framework of asset securitization,including the definition of asset securitization and the elements and basic processes that constitute the operation of asset securitization.On the other hand,it introduces the core function and significance of SPV--bankruptcy isolation,and expounds the basic connotation and significance of bankruptcy isolation mechanism in detail.The second part is the legal analysis of the effect of SPV bankruptcy isolationThis part will discuss the independence of SPV property.First,the connotation of SPV property independence is independent from the inherent property of the principal,the inherent property of the trustee and the inherent property of the beneficiary.Second,it introduces the way to realize SPV property independence--real sale and special purpose entity structure.The third part is the obstacles to the realization of SPV bankruptcy isolation effectIn this part,the existing norms of China’s credit asset securitization system are briefly sorted out in four stages,and then the obstacles affecting the performance of the bankruptcy isolation function of SPV in China’s laws and regulations on "true sale","effective creation of special purpose trust" and other relevant supporting legal systems are discussed in detail.The fourth part is the suggestion of perfecting SPV bankruptcy isolation systemThis part will be in view of the third part of the proposed,China’s law at the present stage,the impact of the implementation of the obstacles to the implementation of bankruptcy isolation of the relevant problems,put forward targeted suggestions;For example,to improve the special purpose trust system,the special purpose trust can better play the role of bankruptcy isolation by establishing the legal subject qualification of the special purpose trust,improving the identification standard of true sale and limiting the application of traditional rules. |
