| Asset securitization is an important financing method in China’s financial market.As an innovative financing method,the key to its difference from the traditional financing method is the setting of risk isolation system with the financier,and the key to realize risk isolation is the real sale of basic assets.Due to the complex transaction structure of asset securitization and the immature market of asset securitization in China,there is a lack of systematic and in-depth research on the problems related to real sale,and the provisions in all links related to real sale are not perfect.The author analyzes the problems existing in the transfer of basic assets and the examination and determination of real sale,combines the practical operation and draws lessons from foreign research results,and seeks the method to improve the real sale system of asset securitization in China.The framework of this paper is divided into four parts:The first chapter explains the concept and importance of real sale in asset securitization business,and puts forward the problems existing in the real sale of asset securitization.On the one hand,it is the problem of real sale in the transfer of basic assets,mainly the legal attribute and effectiveness of the transfer of usufruct basic assets in the process of the transfer of basic assets,as well as the problem of notifying the debtor in the transfer of creditor’s rights.On the other hand,there are problems in the examination and identification of real sale,mainly the examination methods and identification standards of real sale and how to realize real sale under the special mode of securitization.The second chapter analyzes the problems of real sale in the transfer of basic assets,analyzes that the legal attribute of income basic assets should belong to future creditor’s rights,and the subsequent different views on the effective time point of future creditor’s rights transfer,and makes a comparative demonstration with reference to the relevant provisions of other countries.This paper analyzes the application of the general provision of notifying the debtor of the transfer of creditor’s rights in the asset securitization business,points out the limitations of the provision and the particularity of the transfer of creditor’s rights in the asset securitization business,and puts forward the solution of registration and publicity.The third chapter explains the problems in the examination and identification of the real sale.Firstly,China’s asset securitization lacks the necessary mode selection of pre examination and Post Examination in the real sale;Secondly,it expounds the provisions on the recognition of real sale in China at the legal and accounting levels,and analyzes the impact of various considerations on the recognition of real sale;Finally,it puts forward the differences between income based asset securitization and Asset Securitization under circular purchase mode and typical asset securitization in the identification of real sale,and constructs its realization mode of real sale.The fourth chapter summarizes the analysis of the problems raised,and puts forward corresponding suggestions for improvement.In terms of the transfer of real sale of basic assets,it is proposed to introduce the concept of future creditor’s rights into the civil code,divide the creditor’s rights into future creditor’s rights and real creditor’s rights according to whether the creditor’s rights occur at the time of transaction,stipulate that the future creditor’s rights transfer is the effective time point of future creditor’s rights transfer,introduce the creditor’s rights transfer registration system as the publicity method of creditor’s rights transfer,and put forward specific operation methods.In terms of the examination and determination of real sale,we should establish a formal ex ante examination and substantive ex post examination under the filing system,accelerate the unified legislation of the State Council on asset securitization,and put forward some suggestions to make general provisions before listing specific standards in the unified legislation,and constantly improve them in practice;For the problems of the real sale of the securitization of usufruct based assets and the Securitization under the circular purchase mode,this paper puts forward the idea of constructing the real sale of different modes. |
