不动产收益权证券化研究

发布时间：2018-05-02 22:44

本文选题：不动产收益权 + 未来债权　；参考：《中国政法大学》2014年硕士论文

【摘要】：资产证券化属于直接融资,既是企业融资的重要途径,也日渐成为资产管理、风险管理的重要手段。我国资产证券化的研究、立法与实践起步较晚,在近十年的试点过程中波动性地快速发展,尤其是以公路桥梁、公路隧道或者公路渡口等不动产收益权为基础资产的证券公司资产证券化有较大的扩张潜能。但是,由于合同法、破产法、金融监管等基础法律以及关于资产证券化专门规定存在较多缺陷,导致我国不动产收益权证券化在基础资产的界定、转让、SPV构建、真实销售、破产隔离等最为核心的问题上,缺乏明确、完善、适当的法律支撑,由此带来的法律不确定性及其风险,阻碍了资产证券化的发展。本文将重点立足于中国本土资产证券化法律规则体系下的不动产收益权证券化,不空泛地以国外理论“纸上谈兵”,而是以本土问题为出发点和落脚点,将二者结合,对前述核心问题展开论证。本文共由三部分组成：引言、正文和结论。其中正文部分共分为以下五章：第一章是对我国不动产收益权证券化的概述,首先梳理了资产证券化“一个核心与三个支撑”的基本理论体系以及我国信贷资产证券化、证券公司资产证券化、资产支持票据之“三国演义”的实践现状。之后,以莞深高速公路收费收益权专项计划为例,剖析了其所涉交易主体及核心法律关系,提出了不动产收益权证券化的制度优势与扩张潜能。第二章重点探讨不动产收益权的权利结构与法律性质,以收费公路为例,通过解构收费权、收费收益权两个层面的权利结构,提出“非公营企业的收费收益权”为符合条件的基础资产,进而在理论上界定了其属于“未来债权”,“不确定性”是其最大特征,而“可特定性”是其关键的适格性要求。第三章重点探讨基础资产的转让问题,从不动产收益权可让与性的比较法研究出发,揭示了“可让与性”之本质,探讨了不动产收益归属移转的时点、不动产收益权转让合同的对内效力及对外效力。由于中国法规定的缺失,本部分是基于理论分析与比较法考察而得出结论。第四章从专项计划与真实出售两个维度探讨“破产隔离”问题,指出专项计划缺乏主体地位、缺少《信托法》与《破产法》的支撑,只能在《合同法》、《破产法》的零散规定中构建我国“真实出售”的规则。不动产收益权证券化需重点根据不动产收益权之特殊性及其产生时点来判断可否实现“破产隔离” 第五章就完善我国不动产收益权证券化提出了一些宏观的制度建议,一是在合同法层面完善未来债权的分类、转让、公示制度；二是在信托法层面将信托从“分业经营”中释放,以信托尤其是宣言信托重构不动产收益权证券化的法律结构；三是在破产法层面对证券化作出专门规定；四是资产证券化自身层面重点完善SPV构建与真实出售的规定。
[Abstract]:Asset securitization is a kind of direct financing, which is not only an important way of enterprise financing, but also an important means of asset management and risk management. The research, legislation and practice of asset securitization in our country started late, and developed rapidly in the process of pilot in the past ten years, especially in the highway bridge. The securitization of securities companies with real estate income rights such as highway tunnel or highway ferry has great expansion potential. However, there are many defects in the basic laws, such as contract law, bankruptcy law, financial supervision and special provisions on asset securitization, which lead to the definition, transfer and construction of SPV, real sale of real estate right securitization in our country. The lack of clear, perfect and appropriate legal support on the most core issues such as bankruptcy isolation and the resulting legal uncertainty and risks hinder the development of asset securitization. This paper focuses on the securitization of real estate income rights based on the legal system of China's local asset securitization, not with foreign theories, but with local issues as the starting point and the foothold, combining the two. The above-mentioned core issues are demonstrated. This paper consists of three parts: introduction, text and conclusion. The text is divided into the following five chapters: The first chapter is an overview of the securitization of real estate income rights in China. Firstly, it combs the basic theoretical system of "one core and three supports" of asset securitization and the credit asset securitization and securities company asset securitization in China. The practice status of the "Romance of the three Kingdoms" of Asset supporting Instruments. Then, taking the special plan of Guan-Shen Expressway toll earning right as an example, this paper analyzes its transaction subject and its core legal relationship, and puts forward the institutional advantages and expansion potential of the securitization of real estate income right. The second chapter focuses on the right structure and legal nature of the right to real estate income, taking toll roads as an example, through deconstructing the right to collect fees, the right to collect income from the two levels of the right structure, It is put forward that "the right to charge income of non-public enterprises" is the basic asset that meets the requirements, and then it is defined theoretically that it belongs to "future creditor's rights", "uncertainty" is its biggest characteristic, and "specificity" is its key qualification requirement. The third chapter focuses on the transfer of basic assets, starting from the comparative study of transferability of real estate income right, reveals the essence of transferability, and probes into the time point of ownership and transfer of real estate income. The internal and external effectiveness of the contract for the transfer of real estate income rights. Due to the absence of Chinese law, this part draws a conclusion based on theoretical analysis and comparative study. Chapter four discusses the problem of "bankruptcy isolation" from the two dimensions of special plan and real sale, and points out that the special plan lacks the status of subject and the support of Trust Law and bankruptcy Law. Only in the piecemeal provisions of contract Law and bankruptcy Law can the rules of "real sale" be constructed in our country. The securitization of real estate income right needs to judge whether "bankruptcy isolation" can be realized according to the particularity of real estate income right and its producing time. The fifth chapter puts forward some macroscopical system suggestions to perfect the securitization of real estate income right in our country. The first is to perfect the classification, transfer and publicity system of future creditor's rights in the level of contract law. The second is to release the trust from "separate operation" in the level of trust law, to reconstruct the legal structure of securitization of real estate income right by trust, especially the declaration of trust, and to make special provisions on securitization at the level of bankruptcy law. Fourth, asset securitization itself focus on improving the construction of SPV and the provisions of real sale.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.6;D922.282;D922.291.92

【参考文献】