我国企业资产证券化中SPV法律形式的研究
发布时间：2018-07-14 13:34
【摘要】：SPV也即特殊目的载体,是在企业资产证券化中处于核心地位的机构。在世界范围内,各国主要采取的SPV法律形式主要有三种:公司型(SPC)、信托型(SPT)和合伙型(SPP)。而我国企业资产证券化由证监会推出一种独特的模式:资产支持专项计划。笔者在本文引言中首先提出了我国资产支持专项计划在实践中的破产隔离能力被质疑。在第一部分笔者介绍了世界范围内的三种最通行的SPV类型及其优缺点。文章的第二部分笔者分析论述了我国如果采取公司型SPV、信托型SPV、合伙型SPV与我国现行法律有什么冲突以及是否有适用的可行性。公司型SPV适用主要的法律障碍是设立SPC与我国公司法规定的标准条件不相符,与我国证券法发行债券的要求不相符,以及关于提取公积金和税收上面的冲突等。信托型SPV适用的主要法律障碍是未来收益权无法发行证券的问题以及发行的信托受益权证的流通性不强的问题,还有SPT无法在我国做到破产隔离的问题。合伙型SPV适用的主要法律障碍是合伙企业无法发行证券的问题以及合伙人要承担连带责任因此丧失了破产隔离的功能等问题。经过分析每一种类型的SPV与我国的法律冲突以及适用的可行性之后,笔者认为公司型和合伙型的SPV都在我国不具有可行性,而信托型的SPV还是有可能适用的。文章最后一部分笔者提出了自己的建议,根据我国的国情,采用国有独资公司的形式以及信托型的SPV是可行的,还可以采用离岸资产证券化的模式,规避掉SPV与我国法律冲突的问题。
[Abstract]:SPV, also known as special purpose carrier, is the core institution in enterprise asset securitization. In the world, there are three kinds of SPV legal forms: corporate type (SPC), trust type (SPT) and partnership type (SPP). China's enterprise asset securitization by the Securities Regulatory Commission launched a unique model: asset support special plan. In the introduction of this paper, the author first points out that the bankruptcy isolation ability of China's asset support program is questioned in practice. In the first part, the author introduces the three most popular SPV types in the world and their advantages and disadvantages. In the second part of the article, the author analyzes and discusses the conflict between the corporation SPV, trust SPV, partnership SPV and the current law of our country and the feasibility of applying them. The main legal obstacle to the application of company SPV is that the establishment of SPC is inconsistent with the standard conditions stipulated in our company law, the requirement of issuing bonds in securities law of our country, and the conflict between withdrawal of accumulation fund and tax revenue, etc. The main legal obstacles to the application of trust SPV are the problem that the right of income can not be issued in the future, the problem that the circulation of the trust beneficial warrant issued is not strong, and the problem that SPT is unable to achieve bankruptcy isolation in China. The main legal obstacles to the partnership SPV are the inability of the partnership to issue securities and the loss of the function of bankruptcy isolation for the joint and several liability of the partners. After analyzing the conflict of laws between each type of SPV and our country and the feasibility of its application, the author thinks that both the company type and the partnership type SPV are not feasible in our country, but the trust type SPV is still possible to apply. In the last part of the article, the author puts forward his own suggestions. According to the situation of our country, it is feasible to adopt the form of wholly state-owned company and trust SPV, and the mode of offshore asset securitization can also be adopted. To avoid the conflict between SPV and China's laws.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.287
本文编号：2121811
[Abstract]:SPV, also known as special purpose carrier, is the core institution in enterprise asset securitization. In the world, there are three kinds of SPV legal forms: corporate type (SPC), trust type (SPT) and partnership type (SPP). China's enterprise asset securitization by the Securities Regulatory Commission launched a unique model: asset support special plan. In the introduction of this paper, the author first points out that the bankruptcy isolation ability of China's asset support program is questioned in practice. In the first part, the author introduces the three most popular SPV types in the world and their advantages and disadvantages. In the second part of the article, the author analyzes and discusses the conflict between the corporation SPV, trust SPV, partnership SPV and the current law of our country and the feasibility of applying them. The main legal obstacle to the application of company SPV is that the establishment of SPC is inconsistent with the standard conditions stipulated in our company law, the requirement of issuing bonds in securities law of our country, and the conflict between withdrawal of accumulation fund and tax revenue, etc. The main legal obstacles to the application of trust SPV are the problem that the right of income can not be issued in the future, the problem that the circulation of the trust beneficial warrant issued is not strong, and the problem that SPT is unable to achieve bankruptcy isolation in China. The main legal obstacles to the partnership SPV are the inability of the partnership to issue securities and the loss of the function of bankruptcy isolation for the joint and several liability of the partners. After analyzing the conflict of laws between each type of SPV and our country and the feasibility of its application, the author thinks that both the company type and the partnership type SPV are not feasible in our country, but the trust type SPV is still possible to apply. In the last part of the article, the author puts forward his own suggestions. According to the situation of our country, it is feasible to adopt the form of wholly state-owned company and trust SPV, and the mode of offshore asset securitization can also be adopted. To avoid the conflict between SPV and China's laws.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.287
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