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The assets securitized assets transferred Legal Issues

Author: CaoXiuQin
Tutor: BaoLu
School: University of Foreign Trade and Economic
Course: Legal
Keywords: Asset Securitization The transfer of assets So with Real sales Risk isolation
CLC: D912.29
Type: Master's thesis
Year: 2003
Downloads: 185
Quote: 3
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Abstract

Asset securitization since the 70s of the last century, was born in the United States, has attracted the attention of numerous financial community, government officials, experts, academics, financiers and the general investing public. Its outstanding finance function, risk dispersion function, so that the parties involved in asset securitization transactions can benefit realizable functions, as well as many other advantages. From a macroeconomic viewpoint, asset securitization, risk diversification function can reduce the debt of financial institutions is too concentrated arising from financial risk, play a role in promoting national economic security. In legal terms, the securitization of assets to make up for the deficiencies in the system of financing guarantees, risk isolation mechanism to ensure maximum safety and convenience of the creditors to exercise their rights. To date, the asset securitization huge development in the worldwide showing vigorous vitality. Asset securitization, the Chinese government, the financial sector, as well as scholars also invest a lot of enthusiasm, looking forward to this advanced mode of financing in China as early as possible to get a massive boost. In this paper, some of the legal issues of the the assets securitized assets transfer and analysis of China's legal system and the problems. The full text of the main part consists of five chapters, each chapter is as follows: Chapter Overview section, assets, asset securitization, its participants, operating procedures, as well as its advantages where. Assets is not a legal concept, but an accounting concept that refers to past transactions or events and resources by enterprises owned or controlled by, emphasizing the control of the assets and earning power, and did not emphasize its ownership. Is generally believed that the asset securitization refers to financial institutions or enterprises to be able to generate predictable cash flows of the assets in the future, the lack of liquidity through certain structural arrangements, separation of the risks and benefits of the assets and restructuring, and then converted The process for the sale and circulation of securities in the capital markets. The asset securitization participants include promoters (ie, the original creditors, financiers), SPV (special purpose entities), service agencies, rating agencies and credit enhancement institutions. The second chapter analyzes the problem of asset securitization of assets, what assets can be the range of securitization and securitized assets, including those. Securitized assets should have the following characteristics: the nature of the sale itself should have; no legal impediment; low transaction costs; core, such assets have expected a stable future earnings; assets should have more homogeneity and a certain period of history credit history; distribution of the debtor to be relatively wide, and so on. As asset securitization technology has become more sophisticated, the type of the securitization of assets has been quite extensive, almost all to meet the above conditions of assets can become the object of securitization. The third chapter the way of transfer of assets and its legal issues, as well as the attitude of the national laws for the transfer of claims. Asset transfer legal ways and one of the most economical, fast, low-risk way, is the usual way of asset securitization. So that means do not change the content and object of the debt, the creditor to migrate their claims in the transferee lt; WP = 3 gt; legal system. By having made the original rights holders and the assignee all the rights and assume all the risk. Countries have different attitudes for the transfer of the debt, Britain and other countries and the freedom to make notice compared to the commencement of the assignment of claims elements and principles, China and Japan and other countries. Freely transferable, or notice of the transfer, notification of this program are of great significance for the constraints of the debtor, against third. In addition, some contracts and legal claims let specifies some restrictive conditions. Asset securitization practice, these aspects related to the complexity of the transaction and the level of costs, even determine the success or failure of the asset securitization. Chapter transfer of assets should achieve the effect - risk isolation. The risk of isolation is the essential characteristic of the asset securitization. Asset securitization through true sale of assets to the SPV, is the transfer of assets from the property of the originator peeled off, cut off recourse to that portion of the assets of the other creditors of the originator, isolation of promoters risk. To achieve the purpose of risk isolation, the assets must be real sold to the SPV, which can not be identified as a financing guarantee. Countries pursue the substance over form, such as the United States, the sale of assets will often encounter the Court recharacterized threat. The standards this re-recognized in the courts of the United States is not yet clear, in general, recourse, redemption rights, as well as control over assets identified assets whether real standard sale. At the same time, the transfer of the assets can not be identified as fraudulent transfers or preferential transfers Otherwise, the design of asset securitization financing will be court denied failed. Chapter V of the assets transferred legal issues in the case of China. Chinese law claims and attitudes experienced by the restriction to an open attitude, with a notice of the transfer of assignment of rights and principles of the existing contract law. China's financial regulations also do not have a clear financial assets to the pending legislation name the. From the present situation of China's housing mortgage loans, trade receivables, infrastructure receivables are easier quality assets for securitization, scholars generally believe that these types of assets are likely to become the asset securitization in China on a large scale entry point. Recharacterization issues on the transfer of assets in China, China does not allow companies to finance the transfer of asset securitization if the court finds that the secured financing, then the consequences may be more serious than the USA and France, the court may be the identified financing behavior between enterprises invalid receive funds to repay the principal and interest the two sides agreed to the court confiscated the collection of the state treasury. Multinational asset securitization is the more frequent use of asset securitization practice more successful. True sale is the most critical cross-border asset securitization finds \Recommended standard of \China's bankruptcy law also preferential transfer and fraudulent transfer invalid as well as termination of executory contract provisions. To pay attention to these provisions in the bankruptcy law in the design and operation of the asset securitization. In asset securitization transactions, the right of set-off of the original debtor promoters will reduce the transfer of assets to the SPV, thereby reducing the cash flow generated by the assets, increase the risk of investors. Parties to the securitization framework for securitization transactions must take full account of the exercise of the original debtor?

The assets securitized assets transferred Legal Issues

Abstract

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