|
For the purpose of risk-remote institution in asset securitization, asset sale is the best choice of many ways in asset transfer. According to the experience in America, the standard of “True Sale”has not been very clear, and it would be canceled or recharacterized as a secured loan in a bankruptcy of the originator sometimes. Obviously, there are many obstacles in the legal system of China, such as contract law and guarantee law, and we have little experience in characterization. So we must make rules through... For the purpose of risk-remote institution in asset securitization, asset sale is the best choice of many ways in asset transfer. According to the experience in America, the standard of “True Sale”has not been very clear, and it would be canceled or recharacterized as a secured loan in a bankruptcy of the originator sometimes. Obviously, there are many obstacles in the legal system of China, such as contract law and guarantee law, and we have little experience in characterization. So we must make rules through legislative procedure, and provide perfect environment for asset securitization. 基于资产证券化的风险隔离机制,在资产转让的信托型、担保融资型和资产出售型等多种选择方式中,资产出售是最好的选择。但根据美国的司法实践,一项资产转让什么时候构成“真实出售”,虽然有一些判定标准,却并不十分明朗,可能会受到法院重新定性的影响。同样,在我国,实现资产转让更是存在着合同法和担保法等方面的困难和障碍,也没有重新定性的相应规则和实践。因此,在开展资产证券化业务已成共识的情况下,我国必须尽早做出立法应对,建立有关资产证券化的单行法律,为资产证券化创造良好的法律环境。 Assets securitization is the most important financial innovation in the international financial field since 1970s.The great vitality of assets securitization depends on its unique and exquisite risk-remote mechanism. But, both the risk-remote mechanism itself, and the every links of assets securitization transaction, conceal some legal risk. The intention of revealing the risk of assets securitization transaction is to take preventive measures by which we can refrain from the risk. 美国资产证券化是20世纪70年代以来国际金融领域最重要的金融创新,其显示出来的强大生命力在于其独特而又精巧的风险隔离机制。但是,资产证券化风险隔离机制本身,以及资产证券化交易的各个环节,都潜伏着一定的法律风险。揭示资产证券化交易的法律风险,目的在于有的放矢的采取措施,加以防范。
|