中国信托型资产证券化的法律制度研究

Abstract

As a new financing tool, asset securitization has largely solved the strong demand for capital in China's sustained and rapid economic development and improved the operational efficiency of the capital market. Theoretically, there are company-type, trust-type and partnership-type asset securitization models. However, due to the limitations of China's corporate legal system and partnership legal system, trust-type asset securitization models are mostly adopted in practice. At present, most of the researches on trust asset securitization focus on economics, research on financial market and economic development, the research on legal system is relatively weak, and the legislative level of legal basis for guiding and standardizing asset securitization is not high. As a result, some problems have also arisen in practice. Generally speaking, it is in a situation of "practice first, law lags". On the premise of combing the existing legislative system, this paper discusses the problems existing in the legal system of trust asset securitization and suggestions for improvement as the entry point. First of all, for the problem that the scope of qualified trustees of special purpose trust trustees is narrow, the CBRC should simplify the conditions and procedures for trust and investment companies to apply for the qualification of trust trustees for specific purposes, and continue to expand the scope of qualified trustees through legislation to allow fund management companies, insurance asset management companies and other institutions to engage in trust asset management business. Secondly, regarding the trust registration system in trust asset securitization, trust registration antagonism should be gradually adopted through legislation, the organs and matters of trust registration should be clarified through legislation, and the procedural issues of registration, such as review standards and process specifications, should be stipulated through the formulation of supporting laws and regulations. Finally, regarding the problems existing in the separate supervision of asset securitization in China, before the establishment of a unified financial supervision institution or the promulgation of financial integration legislation, the State Council should formulate administrative regulations to clearly stipulate the responsibilities, authorities and scope of supervision of different supervision departments. Let the existing regulatory authorities, such as the central bank, the China Insurance Regulatory Commission and the Securities Regulatory Commission, be independent of each other, coordinate and cooperate with each other, and give full play to their regulatory functions.