The Legal Research On Establishment Of Special Purpose Vehicle In Asset Securitization

As a form of financial innovation, asset securitization has been developed rapidly since the 1970s in the United States, not only the mode of financing the mainstream of the United States, also swept through global financial markets. The biggest advantage of asset securitization is a direct connection between financing and indirect financing, as a whole credit to the conversion of assets credit and become an independent credit system. It is precisely because of asset securitization fundamental innovation, the legal system led to the adjustment of its lack of relevant legal problems will be put on the agenda. It is based on the basic principles on Trust Law, consisting of the special market entity named Special Purpose Vehicle (SPV) as well as functioning as a distinct and mixed mechanism of traditional civil rules, as makes it works differently from many traditional civil rules in the financial market. The procedure of asset securitization reflects new financing-security concept and rules, which analyzing, processing and reusing on internal value of goods from a dynamic perspective, synthesizing and recomposing many traditional areas of specific rules, principles and technology on property law. SPV as the core of the whole process of as asset securitization, which associated with the participants in the legal level, is special in the asset securitization law. In the view of the special status and role of SPV in the process of securitization, it is necessary to research the issues of incorporation of SPV.There are mainly three jurisprudential study methods applied in this thesis. They are analysis on the basic conception, comparison and demonstration. As the base of making a point and the precondition of research, the thesis expatiates and analyses basic law attribute in asset securitization. As the logic main line of written, the thesis analyses the basic elements of legal relationships statically and core-steps dynamically in asset securitization. Specifically, three parts of all are divided logically as follows.The first part of the thesis is about the basic concept of operation on asset securitization and SPV.The second part researches the legal forms of organization of SPV and risk remoteness mechanism. The legal forms of organization of SPV include three forms as the trust, the corporate, and the limited partner that have their advantages and disadvantages. Risk remoteness mechanism is designed to be the core of the framework for securities transactions, and SPV is just the product of risks remoteness mechanism. Risk remoteness mechanism includes two steps that is real sale, bankruptcy isolation. With the development of the asset securitization market, the United States and Japan as two powerful countries in economy, and the development experience is worthy to learned from.Part three takes the conclusions we get in the above two parts into China's practice. As the formal start of China's credit asset securitization, the domestic has been focused on transferred from the phase of the initial feasibility analysis and demonstration rapidly to the phase of the discuss of incorporation and practical application of operating mode. From a legal perspective, there are many legal obstacles in the process of China's asset securitization, so the emphasis of thesis is focused on choosing to the form for incorporation of SPV. The relevant management approaches are introduced before China's asset securitization experiment, which provided a legal basis for securitization, but China's law conflict should be improved.The conclusion of thesis is that in order to reduce the cost of the legislation, it is proposed to enact a specialized asset securitization law to regulate the establishment of SPV. Legislative proposals are raised by thesis for legal issues of transfer assets, the issues of special purpose trust issuing securities, the establishment of special purpose company.