Research On Asset Transfer Mechanism Of Asset Securitization

Asset securitization is one of the financial innovations which have been developing very fast since 1970s. It has influenced the capital market greatly. This thesis has carried out all-directional and systematical research on the asset transfer mechanism of asset securitization from five aspects, trade structure, the legal principle of creditor' rights, trade confirmation, trade value and trade risk. It has elaborated the transfer mechanism of asset securitization, analyzed the practical issues and cases and put forward some policy suggestion.The thesis analyzes the trade structure of asset transfer of asset securitization from three respects: trade frequency, SPV configuration and the tendency of development. It examines the structural characteristics, influential factors, good and shortcoming of every trade structure. It focuses on analyzing the synthetic structure which includes derived product.The asset transfer of asset securitization is a kind of behavior of release of creditor's rights in legal essence. This thesis makes analysis of the legal principles of the release of creditor's right in asset transfer, makes a comparative analysis on the specific legal stipulation of the countries. The analysis is also made of such problems as the releasability of general creditor's right and the special creditor's right, the notice of the release of the creditor's right, the efficacy and resistance of the creditor's right in asset transfer. As a special transfer of the creditor's rights, the transferring of trust assets is probed into, focusing on discussing trust benefits right, trust asset transfer and its public-show and the influence of false transfer to the effect on affiance.The core of the trade confirmation of property right of asset transfer is the confirmation of the true-sales, including legal confirmation and accounting confirmation. The key concept of asset transfer in asset securitization presents three tendencies of development, from substance doctrine to formalism, from uncertainty to certainty, from unwritten law to statute law. The confirmation in law is mainly carried by the bankruptcy judge according to the judge's discretion, which takes the main consideration of recourse, right to redeem collateral, control of the negotiable securities, residue right, pricing mechanism, the control of account receivable and the partial transfer in the rights and interests of assets. The confirmation in accounting mainly consists of three methods, such as Risk and Reward Approach, Financial Component Approach and Continuing Involvement Approach. Thus the basic requirements, the advantage and disadvantage of these methods are compared in this paper.Based on analyzing the latest essential technology of fair value measurement in FAS157, such as, the fair value measurement of the assets and debts, the assessment technology of fair value measurement, the input information and level system, exposure regulation, the thesis gives attention to the analysis of the fair value measurement problem of three negotiable securities assets of financial assets, financial debt and rights and interests facility in IAS39 and FAS157 and some relevant Chinese requirements. It points out that although the fair value measurement of negotiable securities assets are different, their overall principle is that at the early stage of measurement its focus should be put on the obtained cost, while at the later stage amortized cost. Fair value measurement involves three problems by the accounting affirmation methods, as Risk and Reward Approach, Financial Component Approach and Continuing Involvement Approach; the problem of measurement in the assets transfer when fair value can not be acquired and the measurement problem of recourse debt and maintaining rights and interests.This thesis analyzes the risks like revocable transaction risk, recharacterisation risk, substantive consolidation risk, commingling risk and SPV bankruptcy risk. At the same time, it proposes some preventive actions to these risks. It focuses on making a comparative analysis on substantive consolidation risk in the eyes of law and accounting. It has pointed out that the court stipulating the power that SPV adjudicates with sponsors' entity together can come from a kind of equitable interest of judge which is entrusted bankruptcy law. It also can be considered as the inherent power of court, mainly depending on the legal tradition and legislative stipulation of different countries. There is no unified judge criterion. However, the court will seek the balanced point that holds the benefit of different aspect and balance the conflict of different aspect. Thus, its result embodies the equilibrium of the game of different respect. In accounting, It points out that FASB and IASC is consistent in the overall spirit about substantive consolidation. Both consider whether the control can be transferred as a basic criterion to judge the substantive consolidation of asset securitization. But both have obvious differences in actual operation. Comprehensively considering the factors in accounting and law, the thesis puts forward to evading substantive consolidation risks by five approaches: reinforcing independence, transferring control, perfecting the form of SPV, consummating the measure of accounting handling, reinforcing the supervision and management.At last, from the perspectives of the law, the accounting and the tax the thesis makes analysis on asset transfer mechanism of asset securitization in China. It expounds relevant policy frame and points out there is some leaks and some places remaining to perfect. As a case, this thesis makes comprehensive review on the trade structure, its legal practicality and the risk factors in "Jianyuan 2005-l"in China Construction Bank. Based on that, this thesis puts forward its own policy proposal to the development of Chinese asset securitization from five aspects, programming legislation, accounting handling, basic project construction, market construction, supervision and management.