| The first chapter of this paper introduces the concept of SPV,use the comparison of the "cannikin law" to describe the mechanism of SPV function.Then through three aspects,the legal nature of SPV is introduced in detail,and the concept of SPV is thoroughly dissected to provide a deeper understanding of the functional mechanism of SPV.After that,this chapter presents the three main organizational forms of SPV,namely company SPV,trust SPV and limited partnership SPV.I am comparing the advantages and disadvantages of these three forms of SPV to intuitively understand which SPV mode should be used in different legal systems and different market environments.After a theoretical analysis of the system in which SPV functions,this paper introduces the specific process of asset securitization in detail,and from the perspective of practicality to explain the role of SPV in asset securitization.In the operation process of asset securitization,involving a large number of diversified entities,also a multi-layered and extremely complex transaction process that SPV is the core link.It needs to obtain ownership of the underlying assets from the initiators,and entirely insulate the bankruptcy risk from the initiators.It requires proper operations to enable the underlying assets to generate stable cash flows,and not to create operational risks due to excessive autonomy,even threatens the rights of investors.SPV is still the initiator of the securitization business,and needs to delegate some external institutions,such as credit rating agencies,credit enhancement agencies,and brokerages;to complete the issuance of securities.It is in such a complicated process that SPV has distinct advantages.Therefore,SPV becomes the focus of today’s discussion.This part also analyzes the development status of SPV in China.Trust-type SPV is the dominant model in China at present.However,this SPV model is not wholly compatible with China’s existing legal system,and cannot meet the needs of the rapid development of China’s securitization business.Hence,this paper will discuss the introduction of the company-type SPV system into China.The second chapter of this paper mainly discusses the necessity of establishing a company-type SPV system in China.China’s current credit-type asset securitization system has many problems,such as the negative trust orientation is unclear,and the trust-type SPV is challenging to obtain power.The trust-type SPV exposes increasingly difficulties in practice,which means China urgently needs a new SPV model that can meet the needs of the rapid development of the securitization business.At this time,the company-type SPV has gained the attention of the academic community with its unique advantages: the company-type SPV can insulate the risks from the initiator through the real sale to achieve the perfect bankruptcy isolation.The characteristic of company-type SPV also isolated the risks from managers;the advantage of risk isolation is demonstrated in the company-type SPV.Also,the company-type SPV can also promote the expansion of asset securitization business and is more flexible in securitization operations,which means more potent for China’s increasingly prosperous securitization market.In recent years,China’s legal environment has gradually matured.The revision of the Company Law in 2013 also cleared many obstacles for the introduction of the company-type SPV system,which means the introduction of the company-type SPV system has encountered the best opportunity.The third chapter of this paper mainly analyzes the legal problems faced by China’s introduction of company-type SPV system.In the establishment of the company-type SPV system,setting up what kind of principle is the primary issue.The chartered system and the standard system are the two main choices.We need to consider both the legal tradition of China and the regulatory capacity and market maturity of China’s securities market no matter we adopt which principle.Then,the initiators and organizational structure of the companytype SPV is also a big challenge.Whether it is initiated by a government agency,initiated by a financial institution,or initiated by a third party,this will have an important impact on that the company-type SPV system can be smoothly implemented in China.In terms of organizational structure,how to achieve efficient operation while being as lean as possible,which also tests the wisdom of legislators.Moreover,how to clarify the content of the charter and solve the problem of eligibility for securities is also related to that the company-type SPV can achieve the ultimate goal of securitization.Finally,the double tax burden is a problem that must be faced directly when China introduces a company-type SPV system.How to give appropriate and reasonable tax incentives becomes the focus.The fourth chapter of this paper is mainly to compare and draw on the legislation of other countries and regions.In China,asset securitization and SPV systems are all imported goods,and there will inevitably be a situation of “unacclimatization." Therefore,this chapter summarizes the relevant experiences and methods suitable for China by studying the relevant regulations of the United States,Japan and Taiwan’ asset securitization business and company-type SPV system.The fifth chapter of this paper is mainly about some suggestions for introducing the company-type SPV system in China.In response to the significant legal problems mentioned in Chapter three,and based on the empirical methods summarized in Chapter four,there are several legislative proposals are proposed.About the establishment principle,legal nature,sponsoring organization,organizational structure,the content of the constitution,the scope of securities issuance and tax incentives of the company-type SPV,combined with China’s national conditions and the experience of other countries and regions,it puts forward targeted legislative content.I hope that through the discussion in this paper,I can make useful suggestions for the introduction of the company-type SPV system in the future. |
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