The most basic mortgage-backed securities (MBS) in the United States are hand-held securities, and other types of MBS are innovations based on hand-held securities. MBS is different from ordinary fixed income securities. The debtor of mortgage-backed securitization is not a definite subject, let alone its issuer, but many borrowers of mortgage loans. It is neither a financial bond issued by a bank nor a corporate bond issued by a company. There is no problem of prepayment in general fixed-income securities, but the prepayment risk of MBS is very prominent.
It is the borrower's right to repay the loan in advance. On the surface, it seems a good thing to recover the principal of the transferred securities in advance, because the cash flow occurs in advance. But the problem is that borrowers usually repay the principal in advance when the market interest rate falls, so the yield of reinvested securities investors will fall, thus reducing their investment income. Changing the cash flow of changed securities to meet the needs of institutional investors is a way to reduce the risk of early repayment of MBS. Because different investors have different tolerance for prepayment risk, they can issue multi-level resale securities. The principal and interest of different grades of resold securities are affected by prepayment, so different investors can choose different grades of resold securities to adapt to the characteristics of their liabilities. Therefore, almost all investors can find a suitable MBS based on resale securities.
This kind of securities mainly includes government National Mortgage Association (GNMA) bonds and Federal Housing Mortgage Corporation (FHLMC) bonds. GNMA and FHLMC are financial intermediaries (SPV), which were established by the US government in 1968 and 1970 respectively. The purpose of their establishment is to establish a national secondary residential mortgage market, mainly engaged in the sale of residential mortgage loans, especially when the country is tightening money or the housing market is depressed, in order to increase the liquidity of financial institutions.
In the American financial market in recent ten years, structured finance has become the main force, and one of its main businesses is mortgage securitization. By the end of 199 1, the funds used for residential mortgage loans have reached more than 300 billion dollars, which has an impact on banks and securities industry. The nature of this mutual fund securities trust investment determines that its assets are easy to be converted, and investors' funds in the hands of fund managers are easy to be used and destroyed. Therefore, this kind of securities trust investment behavior should be regulated by the American Investment Company Law promulgated by 1940. According to the provisions of this law, investment companies must register with the Federal Securities and Exchange Commission, otherwise they may not engage in any form of securities sales activities; Investment companies must accept the supervision of investors; Investment companies are obliged to disclose relevant business information to investors and so on. However, there is no explicit provision in this law for this kind of mutual fund securities investment, and according to Section 3 (a) of the US Securities Law promulgated by 1933, the issuance of residential mortgage-backed securities can be exempted from registration.
Therefore, this kind of securities trust investment is still difficult to operate in accordance with the American investment company law. A typical case is the Drovers Bank of Chicago V.SFC In this case, a bank that went bankrupt later issued 52 large mortgage certificates with a total value of $6.5438+0.5 million to the middleman, and the middleman raised funds from 654.38+0.600 companies and natural persons in the United States to buy these mortgage certificates, and each person raised no more than $40,000. The reason for raising funds to buy mortgage certificates is that banks pay higher interest on large mortgage certificates above $654.38 million, so investors can get higher returns. This case was brought by the heir of the bank because he was unwilling to pay such high interest. The reason for the prosecution was that the intermediary's behavior violated the registration requirements of the Securities Law. Although the middleman can make considerable profits by changing hands, and it looks like a securities issue, the court has reached the opposite conclusion because it is worried that this may make the bank evade its commitment obligations. In China, the legal issues of housing mortgage securitization still need to be further clarified, especially from the perspective of civil and commercial law. This paper holds that the civil law principles of housing mortgage securitization are mainly embodied in the following three contractual relationships:
1. Creditor's Rights Assignment Contract
The first step of mortgage securitization is that the bank transfers its mortgage creditor's rights to SPV, which is obviously realized through the creditor's rights transfer contract. It should be noted that both the General Principles of Civil Law and the Contract Law of our country have provisions on the transfer of creditor's rights, but there are different attitudes about whether the transfer of creditor's rights can be profitable. Article 9 1 of the General Principles of Civil Law stipulates: "If a party transfers all or part of its rights and obligations to a third party, it shall obtain the consent of the other party and shall not make profits." This provision may become an obstacle to the securitization of housing mortgage loans, because according to the experience of the United States and Japan, banks usually have a profit agreement when transferring their housing mortgage loans.
Article 79 of China's "Contract Law" stipulates: "The creditor may transfer all or part of the rights of the contract to a third party, except in one of the following circumstances: (1) It may not transfer according to the nature of the contract; (two) according to the agreement of the parties shall not be transferred; (3) It shall not be transferred according to law. " The Contract Law does not prohibit the transfer of interests. According to the objection, the agreement on interests in the transfer of creditor's rights should be allowed. These two laws were formulated and passed by the National People's Congress, and both belong to the basic law. Of course, different regulations should follow the principle that the new law is superior to the old one.
According to Article 8 1 of the Contract Law: "If a creditor transfers his rights, the assignee obtains the subordinate rights related to the creditor's rights, except that the subordinate rights belong exclusively to the creditor." Mortgage is the main subordinate right of bank housing mortgage creditor's rights. According to the principle of master-slave relationship, when a bank transfers its mortgage right, its mortgage right is also transferred.
The transferee of mortgage creditor's rights is SPV, which is a special institution. Although its model has two choices: entity and empty shell, according to the experience of developed countries, China's future SPV should adopt entity design, and its business scope should be limited to the issuance, guarantee and transaction of MBS, and it is forbidden to issue mortgage loans and engage in other business and financing activities. This design is conducive to professional operation. Because SPV objectively requires not to go bankrupt, the government's guarantee support is inevitable. The operation of SPV must sign a custody contract with a commercial bank, so that the commercial bank can become a custody bank, which is responsible for receiving the mortgage principal and interest paid by the borrower on time and paying the agreed interest to the investors of MBS. This custody contract is a trust contract, SPV is the principal, and the custody bank is the trustee. China's Trust Law 5438+0, which came into effect on June 65, 2006, clarified the principle of separation between trust property and trustee's inherent property. Even if the custodian bank goes bankrupt, the trust funds cannot become bankrupt property, which will not affect the payment of principal and interest of MBS.
2. Securities sales contracts
In the process of housing mortgage securitization, special purpose companies issue securities to investors, and investors who sell securities are mainly institutional investors, such as securities investment funds, social security funds, housing Public Offering of Fund, insurance companies and commercial banks. The issuance of this kind of mortgage-backed security should first be regulated by the special law "Securities Law" and then by the common law "Civil Law". From the perspective of civil law, the relationship between special purpose companies and MBS investors is a securities trading contract. According to the experience of developed countries, mortgage-backed security generally adopts indirect issuance, that is, it entrusts securities underwriting institutions to issue real estate securities, so the issuer of MBS must sign underwriting agreements with securities companies. According to Article 2 1 of China's Securities Law, securities underwriting business can be divided into two forms: consignment and underwriting.
Securities consignment refers to the underwriting method in which securities companies sell securities on behalf of issuers and return all unsold securities to issuers at the end of the underwriting period. Securities underwriting refers to the underwriting method in which a securities company purchases all the securities of the issuer according to the agreement or purchases all the remaining securities after selling by itself at the end of the underwriting period. Therefore, in the case of consignment, the securities company is the issuer's agent, and enters into securities sales contracts with MBS investors in the name of the issuer. Underwriting is divided into two situations. First, the issuer enters into a securities trading contract with a securities company; Second, the securities company underwrites first, and if there is any unsold surplus securities at the end of the underwriting period, it will be bought as a buyer.
3. Securities investment trust contract
Most people in the United States invest in mortgage securities through securities trust funds. In order to protect the interests of investors, it is necessary to effectively regulate the fund's investment in mortgage loans through securities investment in trust deed. Trust deed is a special trust deed, and trust deed has a dual structure, including trust contracts between investors (principals) and manager companies (trustees), and trust contracts between manager companies (principals) and fund custody institutions (trustees). But from the perspective of the whole contract, it is investor-centered, and investors are both beneficiaries and clients. Securities investment trust funds belong to trust property, including all kinds of property purchased with securities trust funds, and are the unity of trust property. Because funds belong to trust property and are bound by the purpose of trust, trust funds are separated from the trustee's inherent assets, which is the independence of trust funds. The principal (manager company) and the trustee (fund custodian) have the right to request remuneration for the Fund, but they should also be liable for damages for their acts that violate the trust purpose; Beneficiaries also have the right to demand the distribution of income.
The legal basis of securities investment trust contract is trust law and securities investment fund law. Article 2 of China's Trust Law stipulates that "trust refers to the act that the trustor entrusts his property to the trustee based on his trust in the trustee, and the trustee manages or disposes of the property in his own name for the benefit of the trustee or for a specific purpose, according to the wishes of the trustor." On June 5th, the State Council approved the the State Council Securities Commission to issue the Interim Measures for the Management of Securities Investment Funds (hereinafter referred to as the Measures for the Management of Funds), and the China Securities Regulatory Commission subsequently issued the corresponding implementation guidelines. Article 2 of the Measures stipulates: "The term" securities investment fund "as mentioned in these Measures refers to a collective securities investment mode in which investors' funds are concentrated by issuing fund shares, managed by fund custodians and managed and used by fund managers, and financial instruments such as stocks and bonds are invested. China's Fund Management Measures refers to trust deed as a fund contract, the manager company as a fund manager, the fund custodian as a fund custodian and the beneficiary as a fund holder.
According to Article 5 of China's Fund Management Measures, the fund contract is a necessary contract and can only be established after being examined and approved by the China Securities Regulatory Commission. Securities trust and investment contracts are also standard contracts. The content and format of fund contracts are unified in the Guidelines for the Implementation of Fund Management Measures issued by China Securities Regulatory Commission. In the securities investment trust, the securities investment institution entrusted by investors can be called "manager company", which is a securities trust investment operation institution composed of the skills of securities investment experts. The reason why investors give funds to the manager company is because they trust their securities investment technology, so the manager company should bear a trust obligation to investors. The duty of trust includes the duty of care and the duty of loyalty. In the United States, the so-called duty of care mainly requires the management company to abide by the prudent investor rule, which has three requirements: (1) Before investing, the trustee should make an in-depth investigation of the investment object and make an investment decision after consulting various opinions; (2) The trustee must have reasonable investment skills and fully apply them to the investigation and judgment of investment; (3) The trustee is different from the speculator. Speculators can use funds regardless of risks in order to obtain high profits, and the trustee should obtain reasonable income in a reasonable way.
The so-called duty of loyalty means that the trustee should take the interests of the beneficiary as the purpose when handling trust affairs, and should not consider his own interests and the interests of others, so as to avoid conflicts with the interests of the beneficiary as much as possible. The duty of loyalty is not a concept in the civil law system, and its content is too vague to grasp. The author thinks that the prohibition of agency by oneself or both parties in civil law of continental law system can represent the connotation of loyalty obligation, and the duty of care of kind managers can also include the content of loyalty obligation. Therefore, from the perspective of civil law system, the basic contents of duty of care and duty of loyalty should be consistent. According to China's "Fund Management Measures", the operators of securities investment trust funds are fund management companies, and their establishment must be approved by the China Securities Regulatory Commission. China Securities Regulatory Commission also stipulated the necessary clauses of fund management companies in the Guidelines for the Implementation of Fund Management Measures.
In securities investment trusts, developed countries generally set up fund custody institutions entrusted by managers' companies. According to article 15 of China's fund management measures, a fund approved for establishment shall entrust a commercial bank as the fund custodian to trust the fund assets. The main obligation of the fund custodian is to safely keep all the assets of the fund, execute the investment instructions of the fund manager and handle fund transactions in the name of the fund. Since the custodian institution belongs to the trustee in the trust contract and has formal ownership of the trust funds, the trustor naturally has no right to dispose of the trust funds. Therefore, the establishment of the custodian institution not only has the function of custody, but also can prevent the trust funds from being used by the manager company without authorization, which will harm the interests of the beneficiaries. According to the investment company law of Germany, the fund custodian also has the function of supervising the investment company and refusing the improper instructions of the investment company. According to Item 3 of Article 19 of China's Fund Management Measures, the fund custodian has the right to supervise the investment operation of the fund manager. If the fund manager's investment instructions are found to be illegal, they shall not be implemented and shall be reported to the China Securities Regulatory Commission. This provision is obviously similar to Germany.
The beneficiary of the securities investment trust fund is also the investor of the trust fund. According to Article 43 of China's Trust Law, the beneficiary is the person who enjoys the trust beneficiary right in the trust, and the beneficiary can be a natural person, a legal person or other organizations established according to law. The trust benefits enjoyed by the beneficiary are beneficial rights, which can have the nature of real rights, such as the right of appeal against execution and the right of bankruptcy recall. It can also have the nature of creditor's rights, such as the right to supervise the trustee and the right to claim damages.
Therefore, the beneficial right is a mixed property right. The securities investment trust belongs to the self-beneficial trust, and the beneficial right is generated immediately after the trust contract is concluded. According to Article 49 of China's Trust Law, the scope of beneficial right includes: First, the right of cancellation. If the trustee disposes of the trust property in violation of the trust purpose or causes losses to the trust property due to violation of management duties or improper handling of trust affairs, he has the right to request the court to revoke the disposition. Second, the right to supervise. The beneficiary has the right to know the management status of the trust property, consult the trust account and ask the trustee to make an explanation; When there are special reasons that make the management mode of the trust property unfavorable to the realization of the trust purpose or not in line with the interests of the beneficiary, the beneficiary has the right to ask the trustee to adjust the management mode of the trust property. Third, the right to claim damages. Beneficial right belongs to property right. According to Article 48 of China's Trust Law, the beneficial right can be transferred and inherited according to law.
The performance of securitization of beneficiary rights is issuing beneficiary certificates, which is an important feature of group trust, which is convenient for managers to absorb funds and simplifies the procedures for beneficiaries to obtain benefits and transfer beneficiary rights. China's "Fund Management Measures" refers to beneficiary certificates as "fund units". According to the explanation in Article 55 of the Measures, "fund share refers to the certificate issued by the fund sponsors to unspecified investors, indicating that the holder enjoys the asset ownership, income distribution right and other related rights of the fund and undertakes corresponding obligations".
Visible, beneficiary certificate is a kind of securities, generally divided into registered and bearer. In the case of bearer beneficiary certificates, the transfer of beneficiary rights can take effect upon delivery. As far as the registered beneficiary certificate is concerned, in addition to endorsement, the name and address of the transferee must also be recorded in the beneficiary list. Since the generation of beneficiary right has nothing to do with the acquisition of beneficiary right, beneficiary certificate is a kind of non-burden certificate. Beneficial vouchers can also be used as securities pledges. According to the provisions of China's fund management measures, funds are divided into closed and open types. Open-end fund refers to a fund whose total amount of funds issued is not fixed, and the total amount of fund shares increases or decreases at any time, and investors can purchase or redeem the fund shares in the business premises stipulated by the state according to the fund quotation; Closed-end fund refers to a fund whose total amount of issuance is determined in advance and the total number of fund shares remains unchanged during the closed period. After the fund is listed, investors can transfer and buy and sell the fund shares through the securities market. Both Shanghai Stock Exchange and Shenzhen Stock Exchange have formulated their own listing rules for securities investment funds, which have been approved by China Securities Regulatory Commission. As a representative of the civil law system, Germany has also made some efforts in real estate securitization. German real estate security interest can be divided into mortgage and land debt according to whether it belongs to creditor's rights or not; According to whether securities are issued or not, they can be divided into security interests of securities and registered security interests. Mortgage securities refer to real right securities that can prove that a specific person has the mortgage right, which is to concretize the mortgage right into securities. The disposition of mortgage is based on the possession of mortgage securities. The parties may also prohibit the delivery of mortgaged securities through the property right contract (registration), in which case, the securities mortgage becomes registered mortgage. The transfer of mortgaged securities shall be made in writing and delivered to the mortgaged securities.
However, due to the secret transfer of such securities mortgage, it has credibility under certain conditions. In other words, the acquisition of securities mortgage and the transfer and possession of mortgaged securities must be recognized and made into an approval certificate to have credibility. Only according to the recognized certificate, the transferee of securities mortgage has the right to transfer the same mortgage to a bona fide third party. As a debtor, the landowner has the right to require the creditor to show mortgage securities and recognition certificates when paying off debts. German land debt is also a kind of security interest, which is not based on the existence of creditor's rights and can be set according to the purpose of gift and alternative repayment. Of course, it can also be set for the guarantee of creditor's rights. Land debt can be set according to the delivery of securities, which can be divided into registered securities and bearer securities. Its circulation conditions are similar to mortgage securities. Therefore, the liquidity of German real estate-backed securities is very poor, which is quite different from that of American mortgage-backed securities.
There are three forms of real estate guarantee in Switzerland: mortgage certificate, debt securities and term gold securities. Its mortgage certificate is equivalent to the German securities mortgage, which is not suitable for circulation. Debt securities are the security interests of securitization and a kind of mortgage right of securitization. The debtor assumes the debt with all his property. The owner and debtor of the collateral may be different people. Debt securities are made by the real estate registration authority and record the mortgage right and the creditor's rights secured by it. After this security interest (debt securities) is registered, the real estate registration authority will deliver the securities recording the mortgage right and its secured creditor's rights to the creditors. This kind of securities can be registered or unregistered. Debt securities can also prove the existence and effectiveness of creditor's rights. When the possession of securities is transferred, the creditor's rights recorded in them are also transferred. Creditor's rights recorded in debt securities are valid for those who trust debt securities in good faith.
If you can't identify the defense reasons from the securities, you can't fight against a bona fide third party. Swiss term securities are also a form of real estate mortgage securitization. It is only responsible for the mortgaged land, and the debtor's other property is irresponsible. Therefore, the owner of the collateral cannot be separated from the debtor. When the mortgaged land is transferred, the debts assumed on the land are also transferred to the purchaser, and the original debtor is exempted from the guarantee responsibility. According to Articles 787 and 850 (2) of the Swiss Civil Code, the holder of time guarantee (creditor) has the right to demand the debtor to repay the debt in four cases: first, the land as collateral is divided, which affects the creditor's rights; Second, the land owner reduces the land price and does not provide corresponding guarantee; Third, the debtor has been in arrears for three years; Fourth, when 15 expires. Except for the above four cases, the creditor may not demand repayment of the debt. Therefore, term securities are suitable for continuous capital investment projects.
Japanese legislation in real estate securitization, mainly the Mortgage Securities Law promulgated by 193 1 and the Real Estate Financing and Loss Compensation Law promulgated by 1932, did not play a big role at that time as a relief to financial institutions during the financial panic period that began in 1927, and it was only now that it was taken seriously. In order to stop the phenomenon of short selling mortgage securities, 1987 promulgated the Law on Supervision of Mortgage Securities Industry.
Mortgage-backed security is a form of securitization that combines mortgage and secured creditor's rights, thus making it a financial commodity that can be circulated according to the securities principle. According to the special agreement of the parties who intend to issue mortgage securities, although the records in the register are transferred to securities, the records in the real estate register are still valid, that is to say, the changes in mortgage rights are recorded by the register and securities at the same time. Mortgage securities can be transferred by endorsement, and their credibility is recognized in circulation even without the intervention of the obligee. When accepting an application for the issuance of mortgage securities, if anyone raises an objection, the registrar must urge the mortgagor, the third party acquirer, the mortgagee or the transferor of the mortgage order and the person who abandoned the mortgage order to raise an objection within a certain period of time.
If no objection is filed, it shall not confront a bona fide third party. It should be noted that mortgage securities cannot be issued under the condition of maximum mortgage; The mortgage right of issued mortgage securities does not apply to the extinction system stipulated in Article 378 of the Japanese Civil Code. In the practice of Japan, the seller of mortgage securities does not directly hand over the mortgage securities to investors, but only gives them custody certificates (mortgage certificates), so there may be short selling or double trading of mortgage securities. In order to protect the interests of investors, Japan promulgated the Regulation Law on Mortgage Securities Industry 1987 in February, which regulates the business activities of mortgage securities firms specializing in mortgage securities sales. Its main contents include three aspects: first, the registration system of mortgage securities firms; Second, the third party (specialized mortgage securities depository institution) will keep the mortgage securities and issue a custody certificate; Third, establish mortgage securities association, conduct industry self-discipline and accept complaints from mortgage securities investors. Most of the real estate securities in the civil law system are unburdened securities, that is, they are all recognized by having the right first and then making securities.
For example, the rights recognized by registered real estate stocks and bonds are not produced by the production of securities, and the exercise of rights is not necessarily accompanied by the possession of securities. Only when the securities are transferred should the name of the purchaser be recorded on the securities. At least, the transfer of securities possession should be regarded as an important factor in the disposal of securitization rights. Some real estate securities are negotiable, while others are illiquid. Registered stocks and bonds are usually illiquid securities. For registered real estate securities, the debtor can only pay off the creditors recorded in the securities, and the transfer of the securities is carried out in the form of ordinary creditor's rights transfer. As far as bearer securities are concerned, the debtor has the right to perform to the holder of the securities, and such securities are transferred according to the delivery. In Germany, there is also a kind of selective bearer securities, which records the specific obligee, but at the same time supplements that the holder of the securities can also be the obligee of the securities; Except for malice or gross negligence, the debtor is exempted from the liability to pay off the securities holders; However, the holders of securities have the obligation to prove their rights, so this kind of securities can be regarded as an abnormal form of registered securities.