Legal Issues Research Of The Asset Support Special Plan Of Securities Companies

Present day, there are two types of Asset-backed Securitization.in our country, which include Enterprise Asset-backed Securitization and Credit Asset-backed Securitization.Enterprise Asset-backed Securitization can be conducted by the Asset Support Special Plan of securities companies. However, compared with the current theory of Securitization and practice, there are some differences in the domestic Enterprise Asset-backed Securitization because of lacking of independent status, which lead to affect the basic property isolating from originator’s bankruptcy risk,the definition of basic assets and incoming stability as well. This thesis will discuss the issues Asset Support Special Plan of securities companies in China.This article owns five proportions:The initial part explain the means of Support Special Plan, the process of the Enterprise Asset-backed Securitization and the function of the Asset Support Special Plan which includes mechanism of bankruptcy risk isolation and issue securities. Analyzing the remarkable distinction between the Asset Support Special Plan and SPV.I believe that is formed between program managers and securities holders or legal relations agency, but on the structural arrangement and with reference to the principle of independence of the trust property.The second part analyzes the law relationship between the each participant in the Asset Support Special Plan and analyze the features of the relationship. At the same time,explaining the theory of “ True Sale”.The third part analyze the law risks in the Asset Support Special Plan.The risks that the Special Plan’s assets categorized into bankruptcy property and capital fusion risks are related to the mechanism of bankruptcy risk.The issues of future credit and real asset incoming will affect the independence and stability of the basic property. Especially, analyzing the disputes of the real estate incoming right on the basis of basic law theory. Further more, making a comment on the delegation relationship.The forth part makes recommendation of improving stability of basic property which includes to set up double SPV, Including two forms of "trust" plus special programs and "private equity" plus special plan. And allow future credit transfer and make a perfection to the unique plan agreements and credit transfer information in the short term.As the same time making some suggests which comprising allowing forbidden credit to transfer, establish the special purpose company and define the standard of “True Sale”.The last part is conclusion,summarize the legal issues that author mention above, Giving the conclusive opinions. Suggesting to set up double SPV to strengthen the stability of plan asset. Meanwhile,guaranteeing the contract which are signed between the original right possessor and plan manager meet the standards of the “True Sale”.In the long term, discussing the possibility of setting up company’s SPV and engaging in trust business for the securities companies.