Research On Transferring Of Future Creditor’s Rights In Our Country’s Asset Securitization

The asset securitization in our country developed rapidly in recent years,in promoting the capital circulation,Improve the efficiency of financing,Increase social wealth,played a huge role in such aspects.To underlying assets from the originator transferred to the administrator is the first step in asset securitization,in practice there are a lot of underlying asset is a creditor’s rights in the future,the questions about the transfer of creditor’s rights in the future,the theory and practice are controversial.Generally,securitizable assets should be property rights or properties with clear ownership,independent and predictable cash flow and specificity,but future claims,especially pure future claims,do not fully meet this requirement.Assignment of creditor’s right is premised on the valid existence of creditor’s right,and there is uncertainty about whether the creditor’s right will be realized in the future,which contradicts the theory that the right of disposition is premised on the enjoyment of the right.There is a certain conflict between the assignment of creditor’s rights in the future and the current legal system.It is not clear when the right will be transferred in the process of assignment of creditor’s rights in the future,which may affect the identification of "true sale" and the smooth process of securitization.In addition,it may also lead to the competition of the priority of the assignee under multiple assignment.The doctrine of notifying the debtor is adopted in the assignment of creditor’s rights in China.If the debtor is not notified,it is not effective to the debtor.In the context of asset securitization,the number of future debtors is often large and difficult to determine,so notificationism is difficult to implement.The construction of the system should give consideration to the value of efficiency and order.The creditor’s right in the future contains huge economic value,so it should not be completely resisted because of its conflict with the traditional theory and system.The laws of all countries gradually recognize the transferability of the future creditor’s rights.In general,the assignment of the future creditor’s rights does not violate Article 545 of the Civil Code of China.Therefore,there is legal ground for discussing the assignment of the future creditor’s rights in China.In order to promote the healthy development of creditor’s rights assignment business in the future,it is necessary to set up the corresponding supporting system.On the basis of the classification of the future creditor’s rights,the restriction recognition of the assignment should be made and the effect of the special contract prohibiting the assignment of the future creditor’s rights should be excluded in the asset securitization.The transfer registration can be carried out in combination with the recently implemented unified registration and publicity system of chattel financing of the credit investigation center of the People’s Bank of China,the priority issue of competing claimants can be solved through the registration priority doctrine,and the interests of all parties can be equalized through the information disclosure mechanism.In the case of the adoption of the registration system,the registration time may be used as the time point for the transfer of the creditor’s rights in the future.If the registration system is not adopted,the date of signing the contract can be used as the point of transfer of the creditor’s rights in the future,so as to achieve the purpose of "true sale" and isolate the risk of bankruptcy.