CUHK electronic theses & dissertations collection

金融危机中发达证券化市场出现的信息披露问题给新兴市场敲响了警钟。这些新兴市场意识到在引入证券化的有关结构性改革措施的同时，增加信息披露和市场透明度也十分重要。首先，本文就金融危机中证券化所暴露的问题和危险进行分析。在证券化过程中存在的一系列结构和制度性问题中，有关基础资产质量和风险转移的信息披露和透明度不足。这个问题在金融危机中尤其突出，美国次贷市场中低质量的抵押贷款得以通过证券化将这些贷款的风险以一种复杂且不透明的方式散布到整个金融体系。第二，本文首先回顾了信息披露在现代金融监管中的角色和作用。接着分析了证券化产品的信息披露的特殊性以及美国和欧盟采用的不同披露监管制度。次之，本文介绍了金融危机后各国就证券化信息披露制度的缺陷进行的改革措施。第三，本文重点分析了中国证券化市场中的信息不对称问题，以及信息披露制度的严重缺陷。鉴于从金融危机中所获取的经验和教训，以及中国证券化市场的特点，本文通过对比分析来探讨一个健全的信息披露制度对新兴的中国证券化市场潜在的影响，以及该制度是否能支撑这个市场的健康和可持续发展。本研究最后提出具体建议来改进中国现有的证券化信息披露制度，这些建议将有助于减少证券化本身固有的风险。Disclosure failures exposed in mature securitization markets during the global financial crisis sent warnings to emerging markets. Those emerging markets learned that it is critical to improve disclosure and market transparency in addition to the introduction of broad structural reforms into the securitization process.First, an investigation into the dangers associated with asset securitization shows a number of structural and institutional flaws in the securitization process. The lack of adequate disclosure and the poor level of transparency regarding asset quality and risk transfer were paramount. This became obvious during the 2007-09 financial crisis as the risks associated with low-quality residential mortgage loans in the United States were distributed along the securitization process to the entirety of the financial sector in a complex and relatively opaque way.Second, I review of the role of disclosure in financial regulation. There will be an assessment of the special features of securitization-related disclosure regulation and the different disclosure regulatory systems adopted in the US and the EU. This will be followed by an introduction of post-crisis disclosure reform initiatives.Thirdly, I will examine the poor level of market transparency and the lack of adequate disclosure requirements. This leads to an analysis of the consequent information asymmetry problems that are endemic to the Chinese securitization market. Based on lessons drawn from the financial crisis and the unique characteristics of the Chinese securitization market, I then explore from a comparative point of view the potential impact of a comprehensive and sound disclosure regime and examine whether it can support a sustainable and healthy development for the emerging Chinese securitization market. This study concludes with specific proposals that aim to promote the effectiveness of disclosure and transparency for the purpose of curtailing risks inherent in securitization in the Chinese Context.Detailed summary in vernacular field only.Detailed summary in vernacular field only.Detailed summary in vernacular field only.Detailed summary in vernacular field only.Tan, Fugui."November 2012."Thesis (Ph.D.)--Chinese University of Hong Kong, 2013.Includes bibliographical references.Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web.Abstract also in Chinese.Abstract --- p.i摘要 --- p.iiiAcknowledgements --- p.ivTable of Abbreviations --- p.vList of Diagrams and Tables --- p.viiChapter Chapter 1 --- Introduction --- p.1Chapter 1.1 --- Rationale and Research Questions --- p.1Chapter 1.1.1 --- General --- p.1Chapter 1.1.2 --- Information Problems in Securitization Processes and Markets --- p.3Chapter 1.1.3 --- Disclosure and Securitization --- p.4Chapter 1.1.4 --- Securitization Disclosure Regulation in China --- p.5Chapter 1.1.5 --- Research Questions --- p.8Chapter 1.2 --- Organization --- p.9Chapter 1.3 --- Research Methodology --- p.10Chapter Chapter 2 --- Securitization and Its Evolution --- p.14Chapter 2.1 --- Introduction --- p.14Chapter 2.2 --- An Overview of Securitization --- p.14Chapter 2.2.1 --- General --- p.14Chapter 2.2.2 --- Definition and Transaction Structure --- p.14Chapter 2.2.3 --- Transaction Parties and Structural Issues --- p.16Chapter 2.2.3.1 --- General --- p.16Chapter 2.2.3.2 --- Originator / Sponsor --- p.18Chapter 2.2.3.3 --- The Issuing Entity - SPV --- p.20Chapter 2.2.3.4 --- Credit Rating Agencies --- p.22Chapter 2.2.3.5 --- Arranger / Underwriter --- p.23Chapter 2.2.3.6 --- Servicer --- p.24Chapter 2.2.3.7 --- Trustee --- p.25Chapter 2.2.3.8 --- Legal Counsel --- p.26Chapter 2.2.3.9 --- Structural Issues --- p.26Chapter 2.3 --- Main Legal Issues and Challenges --- p.31Chapter 2.3.1 --- General --- p.31Chapter 2.3.2 --- The Validity of the Asset Transfer --- p.32Chapter 2.3.2.1 --- True Sale --- p.32Chapter 2.3.2.2 --- Alternatives to True Sale --- p.35Chapter 2.3.2.3 --- Re-characterization --- p.39Chapter 2.3.3 --- Bankruptcy Remoteness --- p.40Chapter 2.3.3.1 --- Bankruptcy Remoteness of the SPV --- p.40Chapter 2.3.3.2 --- Risk of Substantive Consolidation --- p.41Chapter 2.4 --- Legal Documentation in the Securitization Process --- p.44Chapter 2.4.1 --- General --- p.44Chapter 2.4.2 --- Transfer Agreements --- p.44Chapter 2.4.3 --- Trust Deeds --- p.44Chapter 2.4.4 --- Servicing Agreements --- p.45Chapter 2.4.5 --- Offering Circulars and Prospectuses --- p.45Chapter 2.4.6 --- Other Documentation --- p.46Chapter 2.5 --- The Rationale of Securitization --- p.46Chapter 2.5.1 --- General --- p.46Chapter 2.5.2 --- Balance Sheet Considerations --- p.47Chapter 2.5.3 --- Cheaper Funding --- p.51Chapter 2.5.4 --- Matching Assets and Liabilities --- p.52Chapter 2.5.5 --- Obtaining A Varied Investor Base --- p.53Chapter 2.5.6 --- Risk Management --- p.53Chapter 2.5.7 --- Making Profits through Arbitrage --- p.54Chapter 2.6 --- The Evolution of Securitization --- p.54Chapter 2.6.1 --- General --- p.54Chapter 2.6.2 --- Securitization and Structured Finance --- p.55Chapter 2.6.3 --- The Variety of Asset Types and Securitized Products --- p.56Chapter 2.6.3.1 --- General --- p.56Chapter 2.6.3.2 --- MBSs --- p.57Chapter 2.6.3.3 --- ABSs --- p.57Chapter 2.6.3.4 --- CDOs --- p.58Chapter 2.6.4 --- Static and Dynamic Securitization Structures --- p.61Chapter 2.6.4.1 --- Static Structure --- p.61Chapter 2.6.4.2 --- Dynamic Structure --- p.61Chapter 2.6.5 --- International Diffusion of Securitization --- p.64Chapter 2.7 --- Conclusion --- p.68Chapter Chapter 3 --- Information Failures in Securitization: the Example of the 2007-09 Financial Crisis --- p.71Chapter 3.1 --- Introduction --- p.71Chapter 3.2 --- From the Subprime Mortgage Meltdown to the Financial Crisis --- p.73Chapter 3.3 --- Information Asymmetries in Mortgage Securitization Markets --- p.83Chapter 3.3.1 --- General --- p.83Chapter 3.3.2 --- Information Asymmetries at the Loan-Origination Level --- p.84Chapter 3.3.2.1 --- Originator’s Information Advantage --- p.84Chapter 3.3.2.2 --- Problems of the Originate-To-Distribute Model --- p.86Chapter 3.3.2.3 --- Moral Hazard in the Mortgage Markets --- p.91Chapter 3.3.2.4 --- The Failure of Preventive Mechanisms --- p.93Chapter 3.3.3 --- Information Asymmetries in the Securitization Process --- p.96Chapter 3.3.3.1 --- General --- p.96Chapter 3.3.3.2 --- Information Asymmetries between Securitizers and Investors --- p.97Chapter 3.3.3.3 --- Information Asymmetries between Servicers and Investors --- p.99Chapter 3.3.3.4 --- Limitations of US Disclosure Regulation --- p.101Chapter 3.3.4 --- Information Failures Caused by the Complexity of Securitized Products --- p.107Chapter 3.3.5 --- Information Failures in the Credit Rating Process --- p.111Chapter 3.3.5.1 --- General --- p.111Chapter 3.3.5.2 --- The Role of Credit Ratings in the Securitization Industry --- p.112Chapter 3.3.5.3 --- Information Failure in the Credit Rating Industry --- p.114Chapter 3.3.6 --- The Impacts of Insufficient Disclosure during the Financial Crisis --- p.119Chapter 3.4 --- Conclusion --- p.121Chapter Chapter 4 --- Disclosure and Securitization --- p.124Chapter 4.1 --- Introduction --- p.124Chapter 4.2 --- The Role of Disclosure in Financial Markets --- p.125Chapter 4.2.1 --- General --- p.125Chapter 4.2.2 --- Protection of Investors --- p.128Chapter 4.2.3 --- Promotion of Market Efficiency --- p.129Chapter 4.2.4 --- Reduction of Systemic Risk --- p.132Chapter 4.2.5 --- Disclosure Based Regulatory System versus Merit Based Regulatory System --- p.133Chapter 4.3 --- Securitization Disclosure Regulation --- p.136Chapter 4.3.1 --- The Characteristics of Securitization Disclosure Regulation --- p.136Chapter 4.3.1.1 --- General --- p.136Chapter 4.3.1.2 --- Assets versus the Issuing Entity --- p.136Chapter 4.3.1.3 --- Vertical versus Horizontal --- p.138Chapter 4.3.1.4 --- Mandatory versus Voluntary Disclosure --- p.139Chapter 4.3.2 --- US and EU Disclosure Requirements for Public Offerings of Asset-Backed Securities --- p.141Chapter 4.3.2.1 --- General --- p.141Chapter 4.3.2.2 --- US Asset-Backed Securities Disclosure --- p.142Chapter 4.3.2.3 --- EU Asset-Backed Securities Disclosure --- p.144Chapter 4.3.2.4 --- Information on Transaction Parties in US and EU ABS Prospectuses --- p.147Chapter 4.3.2.5 --- Information on Transaction Structures in US and EU ABS Prospectuses --- p.152Chapter 4.3.2.6 --- Information on the Underlying Assets in US and EU ABS Prospectuses --- p.154Chapter 4.3.3 --- Post-Issuance Disclosure: EU Post-Issuance Reporting and US Ongoing Reporting --- p.155Chapter 4.3.4 --- A Comparison between the EU and US Disclosure Regulations --- p.157Chapter 4.4 --- Policy Initiatives for the Improvement of Securitization Disclosure --- p.160Chapter 4.4.1 --- An Overview of Policy Initiatives --- p.160Chapter 4.4.2 --- Enhancing Disclosure on the Underlying Assets --- p.163Chapter 4.4.2.1 --- Asset-Level Information --- p.163Chapter 4.4.2.2 --- Enhancing Disclosure for the Due Diligence Efforts of the Issuer --- p.166Chapter 4.4.3 --- Enhancing Disclosure on Transaction Structures --- p.167Chapter 4.4.4 --- Efficient and Smart Disclosure --- p.168Chapter 4.4.5 --- Improved Disclosure on Credit Ratings --- p.170Chapter 4.4.6 --- Disclosure in Private Markets --- p.172Chapter 4.5 --- Interaction between Disclosure and Other Policy Initiatives --- p.173Chapter 4.5.1 --- General --- p.174Chapter 4.5.2 --- Reducing Conflict of Interests --- p.174Chapter 4.5.3 --- Product Standardization and Simplification --- p.177Chapter 4.5.4 --- Improving Credit Ratings --- p.178Chapter 4.5.5 --- The Interaction between Disclosure and other Policy Initiatives --- p.179Chapter 4.6 --- Conclusion --- p.180Chapter Chapter 5 --- Securitization Practices and Laws in China --- p.182Chapter 5.1 --- Introduction --- p.182Chapter 5.2 --- An Overview of the Economic Reforms in China --- p.183Chapter 5.2.1 --- Economic Reforms in China since 1978 --- p.183Chapter 5.2.2 --- SOE Reforms --- p.185Chapter 5.2.3 --- Banking Reforms --- p.190Chapter 5.2.4 --- The Development of Capital Markets --- p.195Chapter 5.3 --- The Introduction of Securitization in China --- p.201Chapter 5.3.1 --- General --- p.201Chapter 5.3.2 --- Stage I (1990s -2004): From Offshore Securitization Deals to Domestic Experiments --- p.202Chapter 5.3.2.1 --- General --- p.202Chapter 5.3.2.2 --- Offshore Securitization Deals --- p.202Chapter 5.3.2.3 --- Domestic Securitization Experiments - NPL Deals --- p.205Chapter 5.3.3 --- Stage II (2005- present): Pilot Securitization Programs in China --- p.207Chapter 5.3.3.1 --- The Emergence of the Interbank Securitization Market --- p.207Chapter 5.3.3.2 --- Securitization by Non-Financial Institutions: Special Asset Management Plan (SAMP) --- p.215Chapter 5.4 --- Legal Framework for Securitization in China --- p.220Chapter 5.4.1 --- General --- p.220Chapter 5.4.2 --- Stage I: (1990s -2004) --- p.221Chapter 5.4.2.1 --- Specific SPV Issues --- p.221Chapter 5.4.2.2 --- True Sale --- p.223Chapter 5.4.2.3 --- Transfer of Security Interests --- p.224Chapter 5.4.2.4 --- Tax and Accounting Issues --- p.227Chapter 5.4.3 --- Stage II: 2005 - Present --- p.228Chapter 5.4.3.1 --- The Legal Framework for the Interbank Securitization Market --- p.228Chapter 5.4.3.2 --- The Legal Framework for SAMPs --- p.249Chapter 5.5 --- Problems of A Sustainable Development of Securitization in China in Light of --- p.theChapter Global --- Financial Crisis --- p.254Chapter 5.5.1 --- General --- p.254Chapter 5.5.2 --- Insufficient Information Disclosure --- p.255Chapter 5.5.3 --- Overreliance on Rating Agencies --- p.257Chapter 5.5.4 --- Moral Hazard Problem --- p.259Chapter 5.6 --- Conclusion --- p.260Chapter Chapter 6 --- Sustainable Securitization Disclosure Regulation in China: Status, Problems, and Suggestions --- p.262Chapter 6.1 --- Introduction --- p.262Chapter 6.2 --- Disclosure Regulations in China’s Interbank Securitization Market --- p.264Chapter 6.2.1 --- General --- p.264Chapter 6.2.2 --- Parties Responsible for the Information Disclosure --- p.267Chapter 6.2.2.1 --- The Legal Framework --- p.267Chapter 6.2.2.2 --- Problems of the Legal Framework --- p.271Chapter 6.2.2.3 --- Suggestions --- p.272Chapter 6.2.3 --- Disclosure Requirements related to Prospectuses --- p.273Chapter 6.2.3.1 --- General --- p.273Chapter 6.2.3.2 --- Information on Transaction Parties --- p.275Chapter 6.2.3.3 --- Information on Transaction Structures and Asset-Backed Securities --- p.277Chapter 6.2.3.4 --- Information on the Underlying Assets --- p.281Chapter 6.2.4 --- Ongoing Reporting --- p.289Chapter 6.2.4.1 --- General --- p.289Chapter 6.2.4.2 --- The Legal Framework --- p.290Chapter 6.2.4.3 --- Problems of the Legal Framework --- p.291Chapter 6.2.4.4 --- Legal Practice and Problems --- p.292Chapter 6.2.4.5 --- Suggestions --- p.293Chapter 6.2.5 --- Disclosure in Relation to Credit Ratings --- p.295Chapter 6.2.5.1 --- General --- p.295Chapter 6.2.5.2 --- The Legal Framework --- p.295Chapter 6.2.5.3 --- Problems of the Legal Framework --- p.296Chapter 6.2.5.4 --- Legal Practice and Problems --- p.296Chapter 6.2.5.5 --- Suggestions --- p.297Chapter 6.2.6 --- General Principles --- p.297Chapter 6.2.6.1 --- General --- p.297Chapter 6.2.6.2 --- The Legal Framework --- p.298Chapter 6.2.6.3 --- Problems of the Legal Framework --- p.299Chapter 6.2.6.4 --- Legal Practice and Problems --- p.300Chapter 6.2.6.5 --- Suggestions --- p.302Chapter 6.3 --- A Feasible Disclosure Approach for China’s Securitization Regulation --- p.311Chapter 6.3.1 --- General --- p.311Chapter 6.3.2 --- The Transferability of Foreign Disclosure Models to China --- p.311Chapter 6.3.2.1 --- Legal Transplants --- p.311Chapter 6.3.2.2 --- Transplanting Foreign Disclosure Models to China --- p.315Chapter 6.3.3 --- A Hybrid of Disclosure Based and Merit Based System --- p.319Chapter 6.3.3.1 --- General --- p.319Chapter 6.3.3.2 --- Merits of Merit Based Approach for China’s Securitization Regulation --- p.320Chapter 6.3.3.3 --- Excursus: Improving Current Merit Based System --- p.323Chapter 6.4 --- The Implementation of Disclosure Regulation --- p.325Chapter 6.5 --- Conclusion --- p.328Chapter Chapter 7 --- Final Remarks --- p.330Reference List --- p.336Chapter Part I. --- Chinese-Language Literature and Legal Instruments --- p.336Chapter 1. --- Books, Book Chapters and Articles --- p.336Chapter 2. --- ABS Prospectuses, Trustee Reports, and Credit Rating Reports --- p.341Chapter 3. --- Chinese Laws and other Legal Instruments --- p.342Chapter a. --- Laws by the National People’s Congress and Its Standing Committee --- p.342Chapter b. --- Administrative Regulations by the State Council and Departmental Administrative Rules by the Ministries --- p.344Chapter Part II. --- English-Language Literature and Legal Instruments --- p.348Chapter 1. --- Books, Book Chapters and Articles --- p.348Chapter 2. --- Laws and Other Legal Instruments --- p.37