美国资产证券化中特殊目的载体法律结构研究
发布时间：2018-09-06 06:40
【摘要】： 20世纪60年代末至70年代初，资产证券化在美国得到大规模发展。资产证券化虽然开始于住房按揭领域，但由于其深受投资者欢迎，20世纪70年代以后迅速扩张到其他行业及其他发达国家和新兴市场。如今，资产证券化已成为美国金融市场上许多企业所依赖的重要融资手段，而由其产生的各种金融产品也已经成为市场投资者的投资组合中不可缺少和不可替代的金融品种。可以说,资产证券化已经深刻地影响了美国以及国际金融业的发展。 有鉴于此，本文对美国资产证券化中最重要的机构——特殊目的载体的法律结构进行了分析，并对与特殊目的载体密切相关的破产风险隔离机制进行了详细了讨论。 全文通过给出资产证券化的定义和资产证券化的一般流程，确定了研究范围和论文主线。以资产证券化的流程为线索，阐述了特殊目的载体在资产证券化中的地位、意义及作用，并对其涉及到的税法、破产法、商法、证券法等方面的问题进行了讨论。安然一案对美国的特殊目的载体构造影响极大，本文介绍了该案中与特殊目的载体相关的部分，以说明滥用特殊目的载体带来的负面影响。最后是对本文研究成果的适用：以美国为参照，分析了我国构造特殊目的载体的法律环境。 本文引言部分简单介绍了资产证券化和特殊目的载体的历史背景和研究背景。第一章给出了资产证券化的定义和资产证券化的一般流程：1. 发起人确定证券化的资产集合；2. 构造特殊目的载体；3. 使特殊目的载体远离破产；4. 转移资产；5. 发行资产支撑证券和/或债务证券。 文章的主体部分集中论述了上述第二步构造特殊目的载体和第三步使特殊目的载体远离破产。由于特殊目的载体肩负着信用隔离和发行证券的两大任务，因此在资产证券化中有着非常重要的地位。如何使其成功达到目的，慎重选择法律形式尤为关键。本文分别讨论了特殊目的载体采用信托、公司、不动产抵押投资融通媒介及合伙四种不同法律结构的特点。 作为一种传统的法律实体，信托出人意料地在资产证券化中起了极大的作用。在美国，大部分抵押贷款、信用卡及汽车应收账款、学生贷款证券化都通过信托进行。本文通过对信托特征及信托型特殊目的载体的分析，得出信托作为特殊目的载体的两大优势：易于实现风险隔离和税收优势。从功能的角度出发，信托型特殊目的载体又可分为四大类型：授予人信托、所有者信托、主信托和金融资产证券化投资信托。这四类信托各有特点，发起人可根据自己的需要进行选择。 WP=3 公司型特殊目的载体可以向投资者发行各种不同档的证券而不会损害其税收待遇，还可以把一个或一组发起人的基础资产加以证券化，而不管这些资产是否彼此关联，并且这些证券化交易既可以依次进行也可以同时进行。因此，与信托型特殊目的载体相比，公司型特殊目的载体可以大大地扩大资产池的规模，从而摊薄证券化交易较高的初始发行费用。公司型特殊目的载体的缺点在于税收部门将对公司进行净收入征税。 美国1986年税制改革法为特殊目的载体提供了一种新的身份：不动产抵押投资融通媒介。不动产抵押投资融通媒介只是一种身份，无论是公司、合伙、信托还是其他实体，只要符合法定条件就可以按不动产抵押投资融通媒介进行纳税。在确定采用不动产抵押投资融通媒介的身份后，特殊目的载体究竟采用何种法律形式可以只从商业可行的角度考虑，，而无须考虑税收的问题。 有限合伙型特殊目的载体的重要特点是合伙由其成员所有并为其服务，有限合伙型特殊目的载体通常主要向其成员即合伙人购买基础资产，主要为其成员证券化融资服务——这也是它区别与信托型和公司型特殊目的载体的重要不同点。 无论其形式为何，特殊目的载体的破产都会给投资者带来极大的损失。因此，发起人在构造特殊目的载体时会运用多种方法使其远离破产，同时使特殊目的载体不受发起人和其他相关机构破产的影响。另外，评级机构也要求特殊目的载体发行的证券等级只与特殊目的载体本身资产的信用风险相匹配，而不受其他相关机构信用风险的影响。实现破产隔离的最主要手段就是风险隔离机制，特殊目的载体本身在构造时要通过诸如限定经营范围和债务、赋予独立董事以特殊职能、处理好与发起人之间的关系等来实现远离破产；为了使特殊目的载体尽可能免受发起人破产的影响，发起人和特殊目的载体之间的资产转移必须采用真实出售（True Sale）的形式。此外，还要注意同服务商和原始债务人的破产风险相隔离。 即使是在资产证券化起源且发展迅速的美国，特殊目的载体至2002年初在证券界以外仍然为多数人所陌生。正是2001年12月份能源巨擘美国安然公司的轰然倒塌引起了人们对特殊目的载体的关注。本文第四章对为什么特殊目的载体会成为安然公司走向末路的重要工具进行了深入分析。安然公司不恰当地利用特殊目的载体符合特定条件可以不并表的会计惯例，将本应纳入合并财务报表的3个特殊目的载体(其英文简称分别为JEDI、 Chewco和LJM1)排除在合并财务报表编制范围之外，导致1997至2000年期间高估了4.99亿美元的利润、低估了数十亿美元的负债。事发之后，安然不 WP=4 得不重新合并这三个特殊目的载体的财务报表，结果是安然的股东权益缩水?
[Abstract]:From the late 1960s to the early 1970s, asset securitization developed on a large scale in the United States. Although it began in the field of housing mortgage, asset securitization has been widely welcomed by investors. Since the 1970s, it has rapidly expanded to other industries, other developed countries and emerging markets. Today, asset securitization has become a financial market in the United States. Many enterprises rely on important means of financing, and the various financial products produced by them have become indispensable and irreplaceable financial products in the portfolio of market investors.
In view of this, this paper analyzes the legal structure of special purpose vehicle, the most important institution in American asset securitization, and discusses in detail the bankruptcy risk isolation mechanism closely related to special purpose vehicle.
By giving the definition of asset securitization and the general process of asset securitization, this paper defines the scope of the study and the main line of the thesis.Taking the process of asset securitization as a clue, this paper expounds the position, significance and function of special purpose vehicle in asset securitization, and advances the problems related to tax law, bankruptcy law, commercial law and securities law. The Enron case has a great impact on the construction of special purpose vehicles in the United States. This paper introduces the parts related to special purpose carriers in the case to illustrate the negative impact of abuse of special purpose carriers. Finally, it is the application of the research results of this paper: with the reference of the United States, it analyzes the laws of constructing special purpose carriers in China. Environmental Science.
The first chapter gives the definition of asset securitization and the general process of asset securitization: 1. The initiator determines the asset set of securitization; 2. Constructs the special purpose vehicle; 3. Keeps the special purpose vehicle away from bankruptcy; 4. Transfers. Transfer of assets; 5. issue of assets supporting securities and / or debt securities.
The main part of the article focuses on the second step to construct special purpose carriers and the third step to keep special purpose carriers away from bankruptcy.As special purpose carriers shoulder the two major tasks of credit isolation and issuing securities, they play a very important role in asset securitization. This paper discusses the characteristics of four different legal structures of special purpose vehicles: trust, corporation, real estate mortgage investment accommodation medium and partnership.
As a traditional legal entity, trust unexpectedly plays an important role in asset securitization. In the United States, most mortgage loans, credit cards and automobile accounts receivable, student loan securitization is carried out through trust. This paper analyzes the characteristics of trust and the special purpose carrier of trust, and concludes that trust is a special purpose. From the functional point of view, trust-type special purpose vehicles can be divided into four types: grantor trust, owner trust, main trust and financial asset securitization investment trust.
WP=3
Corporate special purpose vehicles can issue various types of securities to investors without compromising their tax treatment, and can also securitize the underlying assets of one or a group of sponsors, regardless of whether these assets are related to each other, and these securitization transactions can be carried out either sequentially or simultaneously. Comparing with the company-type special purpose vehicle, the company-type special purpose vehicle can greatly expand the size of the asset pool, thereby diluting the higher initial issuance costs of securitization transactions.
The 1986 Tax Reform Act of the United States provides a new identity for special purpose vehicles: real estate mortgage investment financing media. After determining the identity of the real estate mortgage investment vehicle, the legal form of the special purpose vehicle can only be considered from the commercial feasibility point of view, without considering the tax issue.
The important characteristic of the limited partnership special purpose vehicle is that the partnership is owned by its members and serves them. The limited partnership special purpose vehicle usually purchases basic assets from its members, i.e. the partners, and mainly serves the securitization financing of its members. This is also an important difference between the limited partnership special purpose vehicle and the trust type and the company type special purpose vehicle. Point.
The bankruptcy of special purpose vehicle (SPV) will bring great losses to investors no matter what its form is. Therefore, sponsors will use a variety of methods to keep SPV away from bankruptcy when constructing SPV, and at the same time make SPV unaffected by the bankruptcy of sponsors and other relevant institutions. In addition, rating agencies also require SPV. The securities issued by the corporation are only matched with the credit risk of the assets of the special purpose vehicle itself, and are not affected by the credit risk of other relevant institutions. In order to avoid the influence of the bankruptcy of the sponsor as far as possible, the transfer of assets between the sponsor and the sponsor must be in the form of True Sale. Risk phase isolation.
Even in the United States where asset securitization originated and developed rapidly, special purpose vehicles (SPVs) were still unfamiliar to most people until early 2002. It was the collapse of Enron in December 2001 that caused people's concern about SPVs. Chapter IV of this paper discusses why SPVs could become successful. In order to make an in-depth analysis of Enron's important tools to the end, Enron inappropriately uses special purpose vehicles (SPVs) to exclude the three SPVs (JEDI, Chewco and LJM1) that should be included in the consolidated financial statements from the preparation of consolidated financial statements. Outside the scope, it led to an overvaluation of $499 million in profits and billions of dollars in liabilities between 1997 and 2000.
WP=4
Is it possible to recombine the financial statements of the three special purpose vehicles, resulting in the shrinking of Enron's shareholders' equity?
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D971.2
本文编号：2225554
[Abstract]:From the late 1960s to the early 1970s, asset securitization developed on a large scale in the United States. Although it began in the field of housing mortgage, asset securitization has been widely welcomed by investors. Since the 1970s, it has rapidly expanded to other industries, other developed countries and emerging markets. Today, asset securitization has become a financial market in the United States. Many enterprises rely on important means of financing, and the various financial products produced by them have become indispensable and irreplaceable financial products in the portfolio of market investors.
In view of this, this paper analyzes the legal structure of special purpose vehicle, the most important institution in American asset securitization, and discusses in detail the bankruptcy risk isolation mechanism closely related to special purpose vehicle.
By giving the definition of asset securitization and the general process of asset securitization, this paper defines the scope of the study and the main line of the thesis.Taking the process of asset securitization as a clue, this paper expounds the position, significance and function of special purpose vehicle in asset securitization, and advances the problems related to tax law, bankruptcy law, commercial law and securities law. The Enron case has a great impact on the construction of special purpose vehicles in the United States. This paper introduces the parts related to special purpose carriers in the case to illustrate the negative impact of abuse of special purpose carriers. Finally, it is the application of the research results of this paper: with the reference of the United States, it analyzes the laws of constructing special purpose carriers in China. Environmental Science.
The first chapter gives the definition of asset securitization and the general process of asset securitization: 1. The initiator determines the asset set of securitization; 2. Constructs the special purpose vehicle; 3. Keeps the special purpose vehicle away from bankruptcy; 4. Transfers. Transfer of assets; 5. issue of assets supporting securities and / or debt securities.
The main part of the article focuses on the second step to construct special purpose carriers and the third step to keep special purpose carriers away from bankruptcy.As special purpose carriers shoulder the two major tasks of credit isolation and issuing securities, they play a very important role in asset securitization. This paper discusses the characteristics of four different legal structures of special purpose vehicles: trust, corporation, real estate mortgage investment accommodation medium and partnership.
As a traditional legal entity, trust unexpectedly plays an important role in asset securitization. In the United States, most mortgage loans, credit cards and automobile accounts receivable, student loan securitization is carried out through trust. This paper analyzes the characteristics of trust and the special purpose carrier of trust, and concludes that trust is a special purpose. From the functional point of view, trust-type special purpose vehicles can be divided into four types: grantor trust, owner trust, main trust and financial asset securitization investment trust.
WP=3
Corporate special purpose vehicles can issue various types of securities to investors without compromising their tax treatment, and can also securitize the underlying assets of one or a group of sponsors, regardless of whether these assets are related to each other, and these securitization transactions can be carried out either sequentially or simultaneously. Comparing with the company-type special purpose vehicle, the company-type special purpose vehicle can greatly expand the size of the asset pool, thereby diluting the higher initial issuance costs of securitization transactions.
The 1986 Tax Reform Act of the United States provides a new identity for special purpose vehicles: real estate mortgage investment financing media. After determining the identity of the real estate mortgage investment vehicle, the legal form of the special purpose vehicle can only be considered from the commercial feasibility point of view, without considering the tax issue.
The important characteristic of the limited partnership special purpose vehicle is that the partnership is owned by its members and serves them. The limited partnership special purpose vehicle usually purchases basic assets from its members, i.e. the partners, and mainly serves the securitization financing of its members. This is also an important difference between the limited partnership special purpose vehicle and the trust type and the company type special purpose vehicle. Point.
The bankruptcy of special purpose vehicle (SPV) will bring great losses to investors no matter what its form is. Therefore, sponsors will use a variety of methods to keep SPV away from bankruptcy when constructing SPV, and at the same time make SPV unaffected by the bankruptcy of sponsors and other relevant institutions. In addition, rating agencies also require SPV. The securities issued by the corporation are only matched with the credit risk of the assets of the special purpose vehicle itself, and are not affected by the credit risk of other relevant institutions. In order to avoid the influence of the bankruptcy of the sponsor as far as possible, the transfer of assets between the sponsor and the sponsor must be in the form of True Sale. Risk phase isolation.
Even in the United States where asset securitization originated and developed rapidly, special purpose vehicles (SPVs) were still unfamiliar to most people until early 2002. It was the collapse of Enron in December 2001 that caused people's concern about SPVs. Chapter IV of this paper discusses why SPVs could become successful. In order to make an in-depth analysis of Enron's important tools to the end, Enron inappropriately uses special purpose vehicles (SPVs) to exclude the three SPVs (JEDI, Chewco and LJM1) that should be included in the consolidated financial statements from the preparation of consolidated financial statements. Outside the scope, it led to an overvaluation of $499 million in profits and billions of dollars in liabilities between 1997 and 2000.
WP=4
Is it possible to recombine the financial statements of the three special purpose vehicles, resulting in the shrinking of Enron's shareholders' equity?
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D971.2
【引证文献】
相关硕士学位论文 前6条
1 杨红伟;美国住房抵押贷款法律制度研究[D];中国海洋大学;2010年
2 关丽丽;企业资产证券化法律制度设计[D];沈阳工业大学;2012年
3 伍兴龙;资产证券化风险隔离机制之法律问题研究[D];中国政法大学;2004年
4 费婷婷;信贷资产证券化的若干法律问题分析[D];西北大学;2006年
5 江忠皓;资产证券化风险隔离机制的法律问题研究[D];四川大学;2006年
6 谢晓勇;资产证券化风险隔离机制法律问题研究[D];中国政法大学;2010年
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