| Summary: | 碩士 === 國立高雄大學 === 財經法律學系碩士班 === 102 === Innovative financial products is driven by the main financial markets booming diversification, but also the activation of the assets of a quote medicine, "Asset Securitization" not only will not use the assets originally precipitation becomes flowable assets and assets not yet received in the future, but also may be issued as a result of the securitization funds into that future utility allows the issuer of the asset securitization funds as a result of the issue made, as other investments or uses, generate more cash flow. Taiwan, Republic of China from 2003 to October 2002 one hundred financial asset securitization approved amount (including the amount of ABCP issued periodically cycle) up to 2.41934 trillion yuan, such a huge "asset securitization" is not only the founding institutions, special purpose other institutions to bring the benefits should not be overlooked, but also on the market to bring historic change.
This article is intended to be one of the assets securitized mortgage securities research project, in order to protect the investor's point of view items in our securities collateralized feasibility mode. The so-called "Project-backed securities" are issued to the borrower's mortgage-based securities, and its principle of operation is similar to residential mortgage securitization, the main distinction between the two objects in the issuing of loans, project mortgage loan securitization artificially companies (such as real estate developers), mortgage-backed securities borrowing is an individual.
Implementation of the project mortgage securitization project loans must be secured loans, the borrower is a project finance or corporate finance projects in the industrial and commercial enterprises. Project-based mortgage securities issued by mortgage securities referred to the project, its kind of asset-backed securities. Need to determine is that the mortgage shall be personal assets as collateral for loans other than residential, such as business or corporate office buildings, machinery and equipment. Specifically: the independence, the future earnings (cash flow or receivables) identifiable assets of a target generated by the project as collateral (financial guarantees), according to the capital market issue bonds with a fixed rate of return to raise funds for a project financing.
Project financing mortgage securities has the following characteristics: First, the use of the financial asset securitization can raise the capital adequacy ratio of financial institutions. Second, to increase liquidity, improve bank assets and liabilities structural imbalance. Third, the use of the financial asset securitization to reduce interest rate risk in the banking fixed-rate assets. Fourth, the bank may use financial asset securitization to reduce financing costs. Fifth, banks can make use of the financial asset securitization lenders lower cost of funds. Sixth, in the normal business cycle times, most financial asset securitization products gain a good and stable.
Collateral under the conditions of the market economy is a more excellent way of security, it offers a more powerful security guarantee for the realization of bank debt, if the borrower is unable or hopeless to repay the loan, the bank has the right to mortgage the property in accordance with the provisions of the law auction, sale price to get priority for repayment. And because the property is not transferred to the mortgage bank, eliminating the banks of the mortgaged property management increased costs. Also, because the banks do not possess collateral, making the borrower to pledge continuing operations, creating profitable production, the borrower can continue to possess, under the conditions of use of the mortgaged property, to obtain bank loans to support, thereby expanding the scale of production, get more earnings.
This use of mortgage financing both to ensure the smooth realization of the loan debt, but also can protect borrowers receive timely funding, and therefore favored by countries borrowing market players, is widely adopted countries banks. There is no project of this term mortgage securitization, but the different types of collateral (movable and immovable) in accordance with "Secured Transactions Law", "Real Estate Securitization Act", "Trust Law", "Company Law", "Securities transactions Act "," consumer Protection law "," Financial asset Securitization Act "so as different legal norms.
However, the range of different objects of different laws, regulations and the protection of its desired, there are norms to protect the main object of the debtor, have to re-SPV (special purpose entities, or referred to as SPE) dominated the norms protection, but in asset-backed securities oriented architecture to our current law and asset securitization most relevant "Financial asset Securitization Act" point of view, the protection of investors is obviously insufficient, and its specifications are also contradictory. Listed below are a few paper argues clearly insufficient to protect views and normative contradiction to investors:
First, Article IV of the Act by the first known "originator" of the financial assets of the Trust was the trustee or allow the special SPV, a special purpose by the trustee or the asset-based company to issue securities or benefit asset-backed securities. However, by this act that: rigor trustee and regulated by the special purpose company does not together, will result in the founding institutions will be delivered to the favorable financial assets of the founding establishments, but the investment people's protection but not necessarily the most favorable (see China's "credit asset securitization pilot management approach." Article II: "As the originating institution, the letter of credit assets in China, banking financial institutions Toto entrusted to institutions by the trustee in the form of asset-backed securities issued securities to benefit from investment institutions, cash generated from the property to pay income asset-backed securities structured finance activities for the Office Law. "Shows that China's asset securitization trustee of the trust is the only way to adopt a single), and may also the founding institutions to take responsibility for making the circumvention, so make asset securitization become more complex and uncertain.
Second, Article 27 of the Act by the second paragraph: the selected beneficiaries meeting people, in its own name, as beneficiaries of the trust litigation conduct litigation or outside. In this "for the benefit of the relevant trust action or conduct litigation on outside "its scope is too broad and too Hangai of uncertainty should be ranked in addition to acts that occurred between himself and the person selected by the trustee, who was selected in order to avoid abuse of their rights sue?, And it has no rights other than this Act Article 20, Paragraph trust supervisors may make the selected people can be discharged from liability of the Trustee, or any changes or termination of the special purpose trust deed, etc., and prejudice the rights of investors. No action was based on the behavior or action outside of the selected person to whom to limit, real and need to be discussed.
Third, the "interested person" concept that Article 30 of the Trustee Act, officers, employees or founding institutions, not have served as trust supervisor. Cover Supervisors position of trust, the trustee is that the affairs executive oversight institutions ok, also the bridge between the beneficiary and the company. Company Act Article 216 first front company supervisors, elected by the shareholders of. And by the holders of the Trust Business Law Article VII, paragraph Trust has issued shares total share capital of five percent or more of total Zheyi of stakeholders. Therefore, investors may also trustee for the interested parties, so investors will cause the trustee shall supervise affairs; and this the supervisors elected position of trust, how will locate, real, not without doubt?
Four, and by the provisions of Article 31 of the Act: Equity holders of more than three percent of the total principal beneficiaries have to matters of common interest in favor of the request in writing to trust supervisors to exercise their rights (item 1). Trust supervisor for the request in the preceding paragraph, except that the exercise of the right to impede the implementation of a special purpose trust affairs, there damage to the common interests of the beneficiaries, or other legitimate reasons, shall not refuse (the second term). However, the letter except for the absence of the second term care supervisors matters, nor legitimate reasons, and do not want to exercise the right to trust supervisors belgium, the beneficiary may, pursuant to the Company Law Article 214 of the minority shareholders the right to appeal directly to the second access to the courts? Or pursuant to the provisions of Article 27, Paragraph 2 of the people on behalf of the beneficiaries selected by the Conference v. litigation? Since this question relates to the rights and interests of investors, there is space for discussion.
Fifth, Article 54 of the Act that the first special purpose company set up by financial institutions, organizations, into shares limited number of its shareholders to an artificial limit. However, by the Company Law Article 1, Subparagraph 4 shares have limited refers to two or more shareholders or the government, corporate shareholders an organized person. Based on the provisions of this item
the shareholders are natural persons or legal entity has the space to discuss (which term does not exclude natural persons as shareholders, article II of the Act and because the second paragraph after paragraph: This Ordinance does not provide, in accordance with the provisions of other laws. Based on provisions of the Act shall return). And because Article 55 of the Act provides: twenty-seventh Company Law the provisions of the Articles, in the special purpose company, do not apply. Is in accordance with Article 54 of the Act and the fifty-fifth view of the context: a special purpose company for the Corporation and its organizations shall shareholder a person (regardless of method
can be a person or a natural person) is limited, will have a special purpose company pursuant to Article 33, paragraph 1 and section when sixty-eight set of directors and supervisors, whose numbers come from the problem? If the problem will not be solved, candidates for the implementation and supervision of the company's business will generate quite a challenge for investors is extremely unfavorable terms. Is how to rationalize the organization of a special purpose company, in order to protect the interests of the beneficiaries, would be an extremely important issues.
Six, Article 52 of the Act by the second paragraph: When SPT contract termination, the trustee sanction letter trust property shall be handled in accordance with Article 35 of the Trust Act. Trust Law and Article 35 of the third, four of view: the trustee of the trust property in violation of the provisions of punishment, the right to request from the principal or beneficiary is aware the date, two years is not exercised eliminated. Over five years starting from the time the facts were likewise occur. This Trust Deed cover upon termination, if the trustee of the Trust Law disposition of property in violation of Article 35 of the way, shall be deemed "non-right punishment "should the right to request the return of the aging Civil Code, the space is not without discussion.
Seven, and handled the assets transferred from Article 83 of the Act Paragraph 3 :: Originator pursuant to the preceding two paragraphs,and get let in accordance with the asset securitization program were presumed to civil law two hundred and fortieth 24, Paragraph 2 paid determined behavior. Concept of civil law two hundred and fortieth 24, Paragraph 2, if the creditors want to petition the court to revoke harmful behavior of the debtors, the debtor must meet "knowingly" harmful creditor rights and benefit people benefit also informed at the time, to apply to the court for the revocation of behavior. So is extremely unfavorable for investors, unfair.As the investor (or beneficiary) for the entire securitization structure, the last and most important member of an organization, but in all of the securities of the research literature, but it is less likely to be the subject of discussion and to protect those least. This article intends to use as a discussion and research to identify the best protection for investors.
Moreover, to our country, "Financial Asset Securitization Act" (hereinafter referred to as the Act) and section fifty-four fourth Article IX, Paragraph: Originator and the Trustee or the special purpose company may not be the same affiliates, However, in order to operate on the current practice of the trustee or special purpose companies are founding almost a hundred percent subsidiary of institutional investors, depending on when the Act three hundred and sixty ninth of twelve at the end of the fiscal year, shall prepare business reports and consolidated financial statements, pursuant to Article 9 and 56 24 of the provisions of this Act, the founder and trustee agencies or special purpose company may not be the same affiliate, is the founding institutions are to circumvent the provisions of this Act and the other to an independent in the name of the trustee or the creation of a special purpose company, but the relationship is still essentially the same relationship between the two companies, so "player and referee" makes the investor protection is clearly insufficient. It really can be done in American Law "true trading principles" and to protect investors isolation bankruptcy, investors may not fight such a huge enterprise, will no doubt not? If investors encounter when founder and trustee agencies or special purpose company conspires hypocrisy transfer of property, rather than the "true sale"; or funding of the founding organizations have a problem occurred while unable to pay, the investor will be difficult to recourse to the originator. This paper intends to recommend our current situation of the Law Changes that investor protection is more perfect.
This paper will present a financial asset securitization framework put forward suggestions to make the debtor's assets can be managed by an impartial third party and, through the mechanism of publicity or by the originator and the trustee by way of agreement, the asset register and benefit from the publicity and notice or investors, to make securitized assets more transparent and better protect the financial asset securitization last part of investors. Besides founding institutions may be through trusts and assets of the debtor or trustee to allow the special purpose company and migration in different ways depending on the assets, financial strength problem when the founder or the Trustee / special purpose company, investors are faced with How recourse to both claims, and the range of reasonable claims, and claims priority issues with other agencies or creditors founding Trustee / special purpose company, the purpose of the study in this article is also desired.
In this paper, the form of American law and Chinese law to regulate the financial securitization of assets and different place to do a comparison. U.S. law because different regions have different norms, its inter-founder and trustee / SPV that a "true sale" principle, in order to protect investors' interests as a priority. And for the true principles of American law dealing with the Financial Asset Securitization Act of doing an analysis of the control to the investor's point of view discusses the contradictions of our existing legal norms and shortcomings.
Finally, the project is due to mortgage securitization investor protection point of view on the feasibility of the model, the lack of existing financial assets of the Securities Act of proposals put forward to amend the law in order to protect investors' interests as a priority.
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