论资产证券化立法中的“安全港”条款

Study on Safe-harbor Provisions in Securitization Legislation

资产证券化作为新兴的融资方式,得到了越来越多国家的采纳和运用。影响其有效性的最大问题,莫过于破产隔离能否真正实现,"安全港"条款正是为了真正保证资产已经从发起人转让给了特殊目的机构。安全港条款适用资产范围广泛,同时也有一些例外情形,它对保护资产证券化,提高交易确定性很有帮助,但也存在一些不足之处,该规定对我国的未来相关的司法以及立法具有指导作用。

Securitization, as a new type of capital-raising method which has the low cost as its main benefit among other priorities, claims its increasing populace all over the world. The major problem affecting its effectiveness is no more than the realisation of bankruptcy-remoteness of the Special Purpose Vehicle（SPV）, while the safe-harbor provision is for the purpose of assuring that the securitized assets have been effectively transferred to the SPV and not subject to the bankruptcy estate of the originator. The provision which has a large scope of application and its exceptions, would be of great help to harbor securitization and improve its certainty, although with some flaws simultaneously. The author concludes that the safe-harbor provision would be of guiding effect to the interpretation of Chinese related legislation.