Prevention Of Securities Company Asset Securitization Business’ Legal Risk

Asset securitization is the means of structured financing based on the assets credit, which core lies in the use of special-purpose vehicle designed to achieve the risk remote of the underlying asset isolated from the originator, custodian, investors and other participants in order to realize its credit assets. This paper is focused on the risk remote of the underlying asset in the asset securitization business of securities companies with the purpose of probing into the legal risk prevention. As one kind of the asset securitization in our country, the asset securitization of securities companies has severe legal risks of the underlying asset without risk remote. The main reason for such a phenomenon is that, under the financial system of "Segregated operation and separated supervision", securities companies can only establish the principal-agent legal relation with investors, but not the trust legal relationship. In principal-agent legal relationship, as the holder of the underlying assets, the investors cannot achieve the risk isolation from the underlying asset. On that account, the author of this paper proposes that, as one special-purpose vehicle in asset securitization, the special project for asset support can be made as the precautionary measure for underlying assets holders, by vesting it the independent civil subject status. This paper tries to explore the rationality and feasibility of Stiftung in German Civil Code, which is a civil subject form in the special project for asset support. Meanwhile, the author of the paper comes up with the corresponding preventive measures for the legal risks in the choice of the underlying asset, its negative list management and its sale link in the asset securitization business of securities companies. What’s more, with an analysis on the civil trust in the judicial practice of our country and the difference between the commercial trust and it, this paper also makes a discussion on whether the civil trust legal relation can be introduced to the asset securitization business of securities companies.