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Legal Discussion on Risk-remoteness of the Non-performing Assets Securitization in Commercial Banks

Author: ZhongMing
Tutor: HanChangYin
School: Shanghai Jiaotong University
Course: Legal
Keywords: asset securitization risk-remoteness special purpose vehicle true sale
CLC: D922.287
Type: Master's thesis
Year: 2008
Downloads: 58
Quote: 1
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Abstract


Asset securitization was the most important financial innovation in the international financial realm in the recent 30 years,and developed quickly. It is efficient in dealing with the non-performing assets (breviary NPAs) in other countries. On the aspect of disposing NPAs with asset securitization,we have been discussing it theoretically for a long time,but practice it recently. This paper analyzes the risk-remoteness which is the key problem of the non-performing asset securitization. The mail risk in non-performing asset securitization is the risk of bankruptcy, which has three forms: the risk from the bankruptcy of SPV to the Securitization, the risk from the bankruptcy of sponsor to the Securitization when transferring the non-performing assets, and the risk from the bankruptcy of sponsor to the securitization after the transference of the non-performing assets. This paper was divided into four parts:Part I focused on spirit and key problem of Asset Securitization. It draws a conclusion that the asset securitization is a efficiency way to solve non-performing assets.Part II focused on the bankruptcy of SPV means the loss of carrier of Asset Securitization; there are three legal forms for SPV to choose: Company, Trust, and Partnership. Also SPV may bankrupt in two situations: voluntary bankruptcy and forced bankruptcy by the creditors, correspondingly, there are ways to remote the risk of the bankruptcy of SPV, such as choosing the organization forms of SPV rationally, defining the operation scope of SPV, restricting the voluntary bankruptcy of SPV and limiting the debts and guarantees made by SPV.Part III focused on the assets being securitized will back to the account of sponsor, if the Transference of Property can’t match the request of the law, and be liquidated. And the Asset Securitization failed. So when transferring the assets, the right way is needed just as the law required. Try the best to achieve“true sale”in legal essence to avoiding being recharacterized and take measures to prevent withdrawing the transference of the assets.Part IV focused on the bankruptcy of sponsor may still endanger the operation of Asset Securitization after the assets are transferred. The main reasons are that SPV may suffer from substantive consolidation and he administrator may terminate the executor contract. So cutting down the route of influence from the sponsor to SPV, and deigning the mechanism to make sure the investor can be paid on time after the executor contract is terminated is needed. And it analyzes simply what risk the SPT needs face.

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CLC: > Political, legal > Legal > Chinese law > Financial Law > Securities and Management Act
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