On "True Sale" In Asset Securitization

The credit of security in asset securitization is based on the income-producing assets,rather than the general credit of originator and SPV.In order to improve the credit of the income-producing assets,we should realize the risk isolation of the income-producing assets,the most important of which is to realize the “true sale” of income-producing assets.The originator sale the income-producing assets to SPV,realizing the risk isolation of the income-producing assets from the general risk of originator,to reach the purpose of promoting the income-producing assets。Assets securitization stems from America,so the development of market and the basic legal construction in American are relatively more mature than those of other countries.Asset securitization of Britain develop quickly,which provides precious experience for the development of asset securitization in our country.The paper studies the legal system about the “true sale” in foreign asset securitization by using the comparison.On the basis,the paper analyzes the legal environment of asset securitization developed in our country,and put forward the construction about the legal advice of the “true sale”.The whole paper is divided into 4 parts as follows.The first part introduces the basic theory of true sale,including true sale of meaning and analysis of legal relationship.Subject,object and content of the true sale are analyzed.The subject of legal relationship includes the sponsor and the SPV.The object is the basic asset to be carried out.Content is the right and obligation of the sponsor and the SPV in the legal relationship of the true sale.The second part analysis of the legal problem of asset “true sale”,including the legal effect of the prohibition of the transfer clause,assignment of creditor’s right,judgment standard of true sales and legal risk of substantial merger.The third part studies on the legal norms of the true sale in America and Britain.Legal norms of the true sale in America includes American Business Law,American Bankruptcy Law and American court case.Legal norms of the true sale in Britain.includes assignment of creditor’s rights and prohibition of transfer clause.On the basis of the analysis,explore enlightenment on perfecting the true sale in asset securitization.The forth part learns from legal norms of the true sale in America and Britain,combined with legal problems of the true sale in China,put forward measures to improve the system of true sale.