我国住房抵押贷款证券化立法研究

发布时间：2018-05-01 14:09

本文选题：住房抵押贷款证券化立法 + 实践过程　；参考：《西南大学》2014年硕士论文

【摘要】：住房抵押贷款证券化是资产证券化的最成熟的表现形式之一,并且在西方国家和亚洲地区有着广泛的发展,而我国的住房抵押贷款证券化,尚处在试验探索阶段。基于我国住房抵押贷款债权巨大的市场潜力,如何从立法的角度推动住房抵押贷款证券化的健康而有序的发展,具有重要的理论价值和现实意义。本文正文共五个部分：第一部分从概念、特征和运行流程对住房抵押贷款证券化进行界定。住房抵押贷款证券化就是商业银行等发放住房抵押贷款的机构将其所享有的缺乏流动性的同类的或同性质的,以未来的预期收益为保障的住房抵押贷款债权,以一定的标准,形成一个资产池并出售给特殊目的机构,特殊目的机构将住房抵押贷款证券化发行并实现融资的一个过程；它具有合同性突出、法律关系复杂、风险连锁性强等特征；住房抵押贷款证券化涉及组建资产池、设立特殊目的机构、对基础资产进行信用增级和信用评级、证券的发行和出售、售后管理与服务等基本流程。第二部分涉及我国住房抵押贷款证券化的实践过程和立法探索。1992年我国开始了住房抵押贷款证券化的实践和立法尝试并取得了一些进展,但从现实情况来看,我国的住房抵押贷款证券化方面的法律规范仍存在诸多法律问题：住房抵押贷款证券化缺乏系统性调整规范；住房抵押贷款证券化监管体系混；商业银行缺乏作为住房抵押贷款证券化的交易主体资格；特殊目的机构法律地位和组织形式不明确；基础资产转让存在障碍；会计规则和税收法律制度等配套制度缺乏。第三部分主要阐明了我国住房抵押贷款证券化立法的必要性和可行性条件。住房抵押贷款证券化是经济发展到一定阶段的必然产物,通过对其立法,可有效地化解商业银行的风险、有助于促进和完善我国的资本市场、更有利于促进我国房地产行业的健康发展；而从可行性角度来看,现阶段也具备了国外成功模式、国内实践经验可资参考、国内资本市场日趋壮大、相关法律法规逐步完善等必备条件。第四部分通过对美国在住房抵押贷款证券化方面的体例模式、立法内容等方面的阐释,可以看出,美国尽管没有针对住房抵押贷款证券化专门立法,但与之相关的立法分别规定在其联邦和各个州不同时期、不同层面的多部法律中。它以海洋法系特有的判例法,灵活地适应市场的变化和多样化的需求,从而保持了其资产证券化法制体系的完整并有效运作。美国资产证券化立法的核心内容是对投资者进行保护,所以其住房抵押贷款证券化所涉及的一系列法律均围绕保护投资者收益和降低投资者风险来展开,并在物权、合同、破产、证券、信托等方面均进行了有效的法律规范。第五部分通过上述我国住房抵押贷款证券化相关立法的研究,在借鉴美国同类立法的先进经验和运行机制的基础上,笔者从采取专门立法的体例模式、建立以证监会为主导的监管体制、实行发行资质审核制度、建立住房抵押贷款证券价格确定制度、赋予特殊目的机构独立的法律地位、建立住房抵押贷款证券交易制度等几个维度,提出了关于我国住房抵押贷款证券化立法的一些建议。
[Abstract]:Housing mortgage securitization is one of the most mature forms of asset securitization, and has a wide development in western countries and Asia, and China's housing mortgage securitization is still in the experimental exploration stage. Based on the huge market potential of China's mortgage loan, how to promote housing from the legislative point of view. The healthy and orderly development of mortgage backed securitization has important theoretical and practical significance.
The text of this article consists of five parts:
The first part defines the securitization of housing mortgage loan from the concept, characteristic and operation process. The standard is a process of forming a pool of assets and selling it to special purpose institutions. The special purpose institution is a process of issuing and financing the securitization of housing mortgage loan; it has the characteristics of outstanding contract, complex legal relationship and strong risk chain, and the housing mortgage loan securitization involves the formation of the pool of assets and the establishment of a special purpose institution. Basic processes such as credit enhancement and credit rating, issuance and sale of securities, after sales management and services are included in basic assets.
The second part involves the practice process and legislative exploration of China's housing mortgage securitization. In.1992, China started the practice and legislative attempt of housing mortgage securitization and made some progress. But in reality, there are still many legal problems in the legal norms of housing mortgage securitization in our country: housing. There is a lack of systematic regulation of mortgage securitization; mixed housing mortgage securitization regulatory system; the lack of commercial banks as the main body of the transaction of mortgage securitization; the legal status and organization form of the special purpose institution is not clear; the transfer of basic assets is obstructing; accounting rules and tax legal systems and so on. There is a lack of supporting system.
The third part mainly clarifies the necessity and feasibility of the legislation of housing mortgage securitization in China. The securitization of housing mortgage loan is the inevitable product of the economic development to a certain stage. Through its legislation, it can effectively resolve the risks of commercial banks, help to promote and improve our capital market, and is more conducive to the promotion of our country. The healthy development of the real estate industry, and from the perspective of feasibility, the current stage also has a successful foreign model, the domestic practice experience can be referred, the domestic capital market is growing, and the relevant laws and regulations are gradually improved and other necessary conditions.
In the fourth part, through the explanation of the United States' mode of housing mortgage securitization and the legislative content, it can be seen that although the United States has no special legislation for housing mortgage securitization, the relevant legislation stipulates in different periods and different levels of various laws in different periods of the federal and various states. The unique case law of the marine law system adapts flexibly to the changes in the market and the diversified needs, thus maintaining the integrity and effective operation of the system of the asset securitization legal system. The core content of the US asset securitization legislation is to protect the investors, so the series of laws involved in the securitization of housing mortgage loan are all around the insurance. To protect investors' income and reduce the risk of investors, we have carried out effective legal norms in real rights, contracts, bankruptcy, securities, trust and so on.
In the fifth part, through the research on the relevant legislation of China's housing mortgage securitization, on the basis of the advanced experience and operating mechanism of the similar legislation in the United States, the author sets up a regulatory system dominated by the SFC, implements the audit system of the qualification of the issuance of the securities and establishes the housing mortgage loan securities price. The establishment of the system, the independent legal status of the special purpose institutions, the establishment of several dimensions of the housing mortgage securities trading system, and some suggestions on the legislation of China's housing mortgage securitization.

【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.287

【参考文献】