Research On The Legal System Of Asset Securitization In Margin Trading Earnings

November 2014,China's Securities Regulatory Commission(CSRC)issued a"securities companies and fund management company subsidiary asset securitization business management regulations".In July 2015,securities companies were formally allowed to carry out margin trading earnings asset securitization business,which further broaden the financing channels of securities companies and ensure the steady progress of securities business.The asset securitization of margin trading earnings is the process of setting up a special plan to issue securities to investors based on the financial claims of the securities companies in the margin trading business.As a new financing channel for margin financing and securities lending business,asset securitization has greatly enhanced the efficiency of financing while also diversifying the financial risk borne by securities companies.However,from the point of view of investors,the risk-taking audiences become broader and more vulnerable,and the social impact is even more severe in the case of systemic risks.Therefore,to identify and regulate the legal risks involved in the asset securitization business of margin trading earnings is an important guarantee for its healthy and orderly development.This paper mainly focuses on the legal nature of basic assets,the transfer of the main and the secured creditor's rights of basic assets,and the risk and regulatory deficiencies resulting from asset securitization.First of all,through the study of the basic theory of creditor's rights,it can be seen that the legal nature of the basic assets in the asset securitization of margin trading earnings is the debt,and is a secured claim.Secondly,through case studies,it is found that there are several legal issues in setting up SPV and transferring basic assets,which will affect the authenticity of credit transfer,the authenticity of credit enhancement and the realization of bankruptcy isolation.These issues include:(1)the SPV does not have an independent legal status,and its assets have the risk of being mixed with the assets of the SPV manager,thereby affecting the realization of bankruptcy isolation;(2)the conflict between the transfer rules of the secured creditor's rights of the basic assets and the existing legal system,affecting the realization of the guarantee function,and the authenticity of the guarantee as one way of credit enhancement will also be challenged.Thirdly,the above legal issues will trigger a series of risks,and our current regulatory system lacks measures to deal with this risk.Finally,we draw lessons from the relevant overseas legislation,and propose that our country should formulate a unified asset-backed securities law and special-purpose substantive law solving the problem of independence of SPV and the conflict between the transfer rules of the secured creditor's rights of the basic assets and the existing legal system in the framework of these special laws.