Solutions To Transfer Of Creditor’s Claim In Formation Of Underlying Assets Of Asset-backed Securitization

The transaction structure of asset-backed securitization in China is divided into trust-type asset-backed securitization,which includes credit asset securitization and asset-backed notes,and scheme-type asset securitization,which includes corporate asset-backed securitization and insurance asset-backed securitization.In trust-type securitization,there are theoretical and logical obstacles to the receipt of consideration by the originator,and the originator still retain control over the underlying assets.While in scheme-type securitization,the "scheme" does not have the legal status of person of the civil law and cannot act as a transferee,in which case the manager will become transferee.All these problems will prevent the transfer of claims from meeting the requirement of asset segregation.The root cause lies in the lack of transferees in the transfer of creditor’s rights in the formation of the underlying assets in China.In the formation of the underlying assets,the transfer of creditor’s rights is achieved independently through two procedures.First,there is an independent assignee who owns the creditor’s rights,so that the creditor’s rights will not be identified as the property of other asset-backed securitization transaction entities.Second,the assignee pays consideration to purchase the creditor’s rights and completes the "true sale".The assignee is crucial in the completion of the effect of the transfer of creditor’s rights,and China’s asset-backed securitization lacks the transferee,so it is difficult to complete the creditor’s rights transfer process.In the securitization of trust-type assets,the originator cannot find a subject to pay consideration,and cannot completely transfer the control on underlying assets.While in the scheme-type asset securitization,subject to regulatory rules,the "scheme" is created to avoid the trust.The "scheme" does not have the status of the legal body,so the lack of the assignee is more obvious.In this regard,it is possible to identify a body with the attributes of a consortium as an assignee.The purpose of asset-backed securitization is to allow the cash flows generated by the underlying assets to fully repay the asset-backed securities,which is the purpose established by the originator when they initiate the asset-backed securitization project,and the underlying assets,starting from the transfer of claims,are a series of operations that revolve around the purpose of asset securitization,and are property gathered according to the purpose,which essentially has the attributes of a consortium.With regard to the segregation requirement of the underlying assets,the independence of the underlying assets can be directly granted in accordance with the purpose patrimony theory.In addition to the independence that the underlying assets should have,the transferee needs to participate in the transaction activities of the securitization,and therefore the law should give it the ability to participate in the asset securitization transaction.The law should therefore provide the transferee with the necessary capacity to participate in the securitization transaction,so that it has the capacity to participate in the corresponding transaction activities of the securitization,for example,the transferee is allowed to participate in the corresponding legal activities in its own name in the relevant transaction of the securitization.