About Information Governance: Securitization of Credit Assets of China's regulation of the optimal choice

Keywords: regulatory / credit asset securitization / sub-prime crisis

Summary: credit asset securitization as a financial innovation, the direct of indirect financing, open a bank credit and the credit market, but its systemic risk amplification of the popular functional model of financial regulation also poses a severe challenge, the United States subprime mortgage crisis demonstrated that the existing regulatory model for the regulation of the securitization of credit assets defects and failures. reflect on the root causes of the subprime mortgage crisis, in essence, can be attributed to the severe financial disclosure anomie. relatively new U.S. financial regulatory system reform, based on China's practice, reconstruction of the financial regulatory system must be based on Information control center, in order to build a platform for the integration of financial Information, the formation of effective Information sharing mechanism, and further improve the financial institutions and regulators of the financial innovations of the full Information disclosure system, strengthen financial consumer protection.



Securitization of credit assets is a lack of liquidity, but with a stable future cash flows of the credit assets as the basis for credit transactions, through restructuring and credit enhancement, issued securities financing. This new financing brings credit system of innovation, it opened up to banks and other financial institutions as credit intermediaries and indirect finance to stocks, bonds, represented by the direct financing channel, is the direct of indirect financing, and then construct a financial system, bank credit and the credit market the transformation of the relationship between in today's accelerating financial innovations, securitization of credit assets and financial regulation is the relationship between financial innovation and regulatory performance of one of this financial regulatory Law in defining the scope of Information and analysis of the U.S. subprime mortgage crisis regulatory information in failure for three reasons, based on the focus on China's future securitization of credit assets supervision of the implementation of information need to promote our country as the securitization of credit assets and other financial innovations regulatory system of choice.

A root cause analysis of the sub-prime crisis, a new perspective: financial disclosure anomie

Information refers to the destination marker on the signal in communication systems that convey the process and content. Wiener, founder of cybernetics (Norbert Wienner that information is a measure of order in the subsequent information science, information ontology and epistemology are two levels of understanding. Body of information refers to the things on display self- the state of motion and movement patterns of change, epistemology is the main information on the state of the movement of things and change the way knowledge and understanding of such expression [1] from a philosophical point of view, information is material movement and a description of the material between the movement and it must be based on the material as a carrier of energy as a driving force.

From an economic point of view, the financial information as a sign the economy is the advanced form of market economy. By Fernand Braudel (Fernand Braudel's theory, the modern market-oriented economic life can be divided into three levels : First, the underlying economy, referring to the self-sufficient economy and close the bArter and labor exchange, and second, middle level of the market economy, manifests itself in free competition and fair exchange, and the third level is based on money, credit characterized by the capitalist economy. [2] Braudel the market economy and capitalist economy to distinguish that the former is transparent, which is "opaque", prone to monopoly and manipulation problems [3] discussion on this Article, the economic life of Braudel's three-on, the key lies in its in-depth analysis of the financial credit-centric features of modern economic life: money and credit as a way to "self-reproduction of the language," [4] increasingly complex, highly technical, and because barriers to entry, leading to monopoly and manipulation of information there. the complexity of financial credit and economic characteristics of information manipulation is the symbol of contemporary information society and economy of the salient features [5] 2007 the outbreak of the subprime mortgage crisis is strong evidence, such as the American legal experts in asset securitization, Professor SchwArtz has pointed out that the securitization of credit assets of the highly complex financial derivatives, investors are on the over-reliance on credit rating agencies, and human greed and conflict of interest is caused by the subprime mortgage crisis at the root of [6] which three reasons are related to the information economy, inadequate disclosure of financial information are closely related.

First, the securitization of credit assets, the excessive complexity and layers of highly leveraged to establish information barriers, leading to disruption and delivery of information failures become the norm. Credit asset securitization as a form of social financing, is a response to stringent financial regulation and production to the complex structure known to the world. in accordance with the provisions of Basel II, [7] Commercial banks must comply with the maintenance of the reserve, retain capital adequacy ratio of 8%, or leverage ratio can not exceed 12.5, the deposit insurance system to pay the premium and other regulatory requirements, but one study estimated that the United States before the outbreak of the crisis in financial products contracts totaling as much as $ 530 trillion, including credit default swaps (CDS) over 60 trillion, which they launched in collateral that is, material the real value of financial assets is only 2.7 trillion, the leverage ratio of 200 [8] a high degree of financial leverage in such a stArt, the securitization of credit assets in a variety of financial innovation funds for the purchase of a huge community, but also bring serious barriers to information, especially mortgage derivative securities long chain, involving many aspects of the pArties, the ultimate provider of funds and the distance between the end-use too far. [9] Because each part of financial transaction contains a new part of the agency relationship, the ultimate provider of funds and the distance between the far end use, the multi-link layers of principal-agent relationship between cause and transmission failures that information blocked, leading to accumulation of risks, detonated financial crisis.

Second, the complexity of financial instruments caused investors to information barriers to the formation of excessive dependence on rating agencies, rating agencies to give a great opportunity to manipulate information and space. Securitized products on the market parties to the transaction information is highly asymmetric, make the necessary credit rating to become the U.S. Securities and Exchange Commission since 1975 began to rely on "national recognized rating organization" (NRSRO, NationallyRecognized Statistical Rating Organization as a credit rating tool. Since then, Congress also requires the use of a variety of financial legislation NRSRO rating [10] and gradually formed the three leading rating agencies, the pattern of U.S. capital markets. [11] In essence, the status of the credit rating agencies should not be the same as other financial institutions, which is a significant public service nature of the financial institutions, acting as the valuation of financial instruments who is also entrusted with protecting the interests of investors, legal redistribution of financial markets and financial self-responsibility system gatekeepers, but the fact that the three major rating agencies, not the interests of investors "Guardian" and the capital market "gatekeepers." Correspondingly, the majority of investors in structured finance vehicles ignorance as credit rating agencies the opportunity to reap huge profits. Compared with the traditional bond, structured finance rating fee structure of the rating agencies, more than half of the total income of these revenues come from one of the few investment banks, in return, provides investment banking fees received ratings extraordinary market power [12] This will undoubtedly bring the moral hazard rating agencies. fact is the case, rating agencies, sub-prime crisis in the use of information asymmetry and information superiority to the subprime loans to high ratings, investors suffered huge losses. prior to the crisis, about 75 percent of subprime mortgage products have AAA rating, 10 per cent of AA, 8% received A, only 7% were rated BBB or lower rating. [13] after the crisis, that the internationally renowned rating agencies pass the buck, then turn rating of AAA financial derivatives The ratings dropped lower and lower. only in July 2009, Standard & Poor's will be 2996 kinds has cast himself as the gold quality mortgages, subprime mortgages and home equity loans rated "D securities." [14] rating agencies manipulation of information arbitrage, the sub-prime crisis contributed to the severity.

Third, financial institutions within the top decision-makers and second-line manager of information between the conflict of interest led to strand breaks, and further deterioration of financial regulation and corporate governance structure, information asymmetries. Financial institutions lies in the internal conflicts of interest paid conflict, second-line manager (SecondaryManagers usually received strict security skills and experienced managers, is the structured credit assets, sales and investments in complex securities and financial instruments of the secondary main executive decision-makers who they based on the completion of the tasks assigned to remuneration, rather than long-term financial performance of companies or investment banks linked to their income in the area of ​​corporate governance, has long been the focus of attention is often focused on only the highest management body, which mainly involves two questions: First, how to reduce top management conflicts of interest, because the top management is usually for their own interests at the expense of the interests of the company, the second is how to improve board and management functions. [15] This analysis of the corporate governance framework, a presumption is implicit, second-line manager by the financial company top decision-makers (Top Manager and direct supervision, therefore, the behavior of second-line manager is not given adequate attention, but are often excluded from the effective governance structure and scope of financial regulation, resulting in the reality of second-line managers for their own interests to conceal, hide risks and even distorted information, and even investment banks have been kept in the dark top decision-makers in the financial industry, financial companies for the use of risk assessment models (VaR, Value-at-RiskModel [16] to determine the second-line manager's compensation , that is to take the second-line manager's remuneration is not only linked with the creation of profits and low risk associated with the way so the demands of second-line manager from starting their own interests, tend to lower the amount of return but a small chance of loss of financial derivatives, such as credit debt swap (Gredit-default swaps. In fact, as financial professionals, second-line managers aware of these derivatives, although it looks like a little risk in terms of a single transaction, it is easy to form a catastrophic systemic risk consequences. However, due to a conflict of interest, they rarely report to the higher decision-makers. information in the second break between managers and top decision-makers or blocked, difficult to upload, even if the company's board of directors of the top decision-makers "accurate" to the already know that information to the board of directors, can not form a true and adequate information flow, information asymmetries in the current model of corporate governance within financial institutions is also still difficult to chronic illness in addition.

Thus, although we can from a different point of view of the root causes of the subprime crisis, a matter of opinion, but the author is concerned, in order to control the angle of view of information, the financial crisis, credit crisis and real information for the regulatory failure in this based on monitoring for information on how to reflect the credit asset securitization and other financial importance of innovation, and thus the current financial environment to build effective regulatory mechanism of information, sorting out and deserves further study.

Second, the Development of securitization of credit assets of Escort: Information Governance

Financial regulation is based on effective information-based. Not all finance-related information on the composition of financial regulatory Law information, said information on this regulation in the information refers to the stability of financial institutions operating or financial regulation in the regulatory decision-making information of importance in the importance of that standard, the Basel system of ideas worth learning. in accordance with Basel II and reporting requirements, the so-called importance is the omission or misstatement could information users to change or influence the assessment or judgments. as a standard, if a financial institution information affecting the safety or regulatory actions of regulatory bodies will have an impact, then it will be part of the financial regulatory Law in the areas of information. [ 17] I believe that the information required at least three levels of regulatory supervision skills: one can observe the financial markets through the different behavior of market players in the transaction and obtain a reasonable number of changes to determine the basis of the information, the second is to overcome market barriers to analyze the information capacity and technology, three in the risk of social background, financial uncertainty has become the norm, the [18] financial regulatory agencies have based on available information and analytical skills to make tough decisions will and ability to determine the direct supervision of information the pursuit of financial supervision order, the value of safety and effectiveness of macro-goals, while also directly affect the micro-effectiveness and feasibility of regulation in a certain sense can be said that effective access to information and effective supervision of all starting point and center for the securitization of credit assets, the information governance is important because:

First, ensure the successful launch of securitization of credit assets from securitization in the process of securitization of credit assets is such a financing arrangement: as a sponsor of the bank, but the lack of liquidity in the foreseeable future of a stable cash current set of assets or assets (the Law is essentially a debt sold to a special goal agencies (SPV, its structure must be arranged through the separation and restructuring of assets and enhance the benefits and risks of credit assets, into cash generated by the asset flow can guarantee the free flow of securities sold to investors in financial markets in the banks involved in securitization activities, involving a number of operational links need to be appropriate disclosure of information. First, when a bank to sell assets to SPV When a director or trustee of the SPV to the disclosure of information about clients 'assets in order to assess the quality of assets, to determine the transaction price and asset management, and secondly, the credit rating agencies, banks need to disclose information about clients' assets in order to complete the asset IRB and subsequently designed a formal asset-backed securities ratings, once again, banks need to credit enhancement and liquidity support providers disclose information about clients' assets to determine credit enhancement and liquidity support rate, and finally, When the asset-backed securities issuance, the issuer of the securities Laws should be based on the appropriate disclosure of information so it can be said to some extent, the process of securitization of credit assets is an information collection, analysis, processing, and to make appropriate decisions process, a process that depends largely on the successful launch of the legal access and information disclosure law, which is an effective information governance.

Second, to overcome the information asymmetry in financing to improve the transparency of the financing.'s Operation and practice of financial markets, whether corporate indirect financing to bank loans or credit to its capital markets business directly issued securities of direct financing, both exists between the investor and the financing problems of asymmetric information, while this information is the information asymmetry where the need for supervision. When a company wishes to bank loans, will do anything to improve a variety of financial indicators in order to obtain confidence of the banks, when the enterprise in order to be able to issue securities in the capital markets to obtain financing directly, often using "packaging market." means reported business conditions, profitability and other ingredients are not comprehensive, and the market value of securities issued between the issue price and there is a departure from the theory, in securitization of credit assets, the structural, social of financing, the investors no longer want to learn on their own but can never truly understand the business "credit" for investment, but being able to generate future cash flows or the specific assets to invest. such assets from the originating bank transferred to the SPV institutions, often by financial institutions and cash flows for the assets to provide security and asset losses, so investors may understand the details of investments, the financing process to achieve full transparency of information, but can not replace real-world operating theoretical assumptions , the possibility is not yet the reality, from reality into the possibility still needs to certain conditions, where the condition is on the securitization of assets, a variety of information for effective control. If the information is inadequate supervision, the consequences could be disastrous. the sub-prime crisis fully explain the occurrence of financial information in the social regulation more necessary in the interests of a huge drive, the black sheep of the banking industry in order to bring some of the commission, through various fraudulent means, including deliberately concealing information, providing false information, or even instead of encouraging consumers false income to trick consumers hooked the U.S. Comptroller of the Currency advisory letter summarized the main types of predatory loans, such as: "Lvda Gun", wrapped in the hidden costs in the amount of financing, "the balloon balance due", compulsory arbitration Terms of the transaction and the real risks and costs have not been fully disclosed, etc. [19] If the information at this time the United States to implement a strong monitoring the subprime mortgage crisis may not occur. In fact, in the secondary market inflated the subprime mortgage situation, 2002, Georgia took the lead at the time known as the "most stringent" anti-predatory lending legislation, issued a <<Georgia Fair lending Act>> [20] The Act provides that, if the two mortgages on the market Investors buying predatory loans, they will bear serious legal consequences. Subsequently, the New York State, New Mexico is also clear that two investors in the mortgage market will face a fine purchase sub-prime, but state control of the sub-prime trying two largest investors in mortgage market - Commonwealth Bank urgent need to expand the sub-prime conflict. Thus, the Commonwealth Bank to lobby the state Comptroller of the Currency to stop implementation of the law against the sub-prime, although Comptroller of the Currency of the basic regulatory functions Commonwealth Bank is to ensure safety and soundness of the system is running, but its entire budget comes from the supervised bank charges, financial dependence makes the Comptroller of the Currency departure from the station supervisor's duties to the position of being regulated in 2004 was declared the state law against the sub-prime because it can not apply to federal bank and valid. to these regulatory arbitrage [21] the behavior of investors unaware. In fact, if investors are to grasp a simple message, that is due to secondary need to pay the cost of securitization of loans, so borrowers, the total cost of these loans is generally higher than traditional bank lending fees, which in addition to principal and interest, but also includes points and start-up costs or other costs associated with the completion of loans , they will not blindly for high-cost subprime loans that rush of financing tools.

Third, the coordination of the various regulators to ensure the effectiveness of supervision and maintenance of financial consumers [22] interest in the indirect financing period, the bank is the dominant financial institutions. Decomposition of the securitization of credit assets to investment banks in the chain savings as an intermediary in the traditional role of financial intermediation, providing the bank to use its experience and strengths in securitization operation in a variety of roles as a channel that has exceeded its banking operations into the securities industry, it necessarily involves the regulation of its banks monitored, non-bank financial institutions involved in the regulation, but banking supervision and securities regulation between the two obvious differences: First, the regulatory purpose and focus of different traditional banking regulation to protect the interests of depositors and maintain the system stability run, while securities regulators focused on protecting investors and maintaining fair. Secondly, the regulatory approach is different from the traditional banking supervision has mainly taken the direct management and regulatory agencies "secret monitoring," Securities Regulation in the greater reliance on market discipline rather than regulatory authorities to intervene. Again, the different regulatory measures of bank supervision to on-site inspection and off-site inspection methods, and securities regulation focuses on strengthening the information disclosure system in this case, the securitization of credit assets in order to ensure effective supervision, coordination banking supervision and securities supervision relationship is imperative.

Coordination of banking supervision and securities regulation relations in two ways: organization and coordination and institutional coordination organization in a coordinated manner about banking regulators and securities regulatory bodies merged to establish a unified regulatory body. [23] The author believes that the current situation in China , this sub-sector regulatory regime by the transition to a unified regulatory system immediately the practice is not pragmatic move, since a unified regulatory basis of the financial mixed operation, although mixed with the operational efficiency of the financial system, optimize the allocation of financial resources advantages, but mixed financial regulation to score higher regulatory standards of business operation, technology is more complex, more difficult to operate in China's financial regulatory standards have not been able to achieve more effective control of universal banking risk, moderate risk to achieve internal isolated cases, changes in financial or mixed should be careful, step by step. It is in this consideration, China's 2005 revised <<Law>> and the <<Securities Act>> Although the legal and regulatory side left room for financial innovation, but still retains the financial sub-sector operations and sub-sector regulators changed the basic framework. system of coordination that the existing sub-sector regulatory system, set up mechanisms to overcome the credit asset securitization regulation The "mismatch" phenomenon, the establishment of regulatory bodies such as regular and irregular joint system is one concrete way. I believe that our current regulatory system is the establishment of information as soon as possible to coordinate and harmonize banking regulation and supervision of the securities excellent choice. The main reason for this is:

First, the information control to a new regulatory concept of unified regulation of banking supervision and securities regulatory objectives. Information monitoring the monitoring philosophy is: "financial" that the intermediation of funds, and credit information is essentially binary one. Information is the prerequisite and credit is the core. [24] Finance is the core of modern economy, its existence and functioning of society depends on the good credit, while the establishment of financial credit, depends on the protection of financial information and financial information flows and use regulations. The reason for this, because credit is party to the transaction in the game's built on the basis of social evaluation, with the relative objectivity of the financial risk from the credit information is incomplete and asymmetric, so the banking supervision and securities regulation The common goal should be to cut through the regulation of credit information incomplete and asymmetric information phenomenon and guard against financial risks and maintain financial security, and promote financial innovation and the optimal allocation of financial resources, and through public participation in the indirect supervision of financial institutions to protect depositors and investors and other legitimate rights and interests.

Second, the information the most important regulatory information disclosure system of bank supervision and securities unified regulation of regulation. The information disclosure system of the original but the most important securities regulatory system, set up the system's basic starting point is to protect the interests of investors. Medium and small investors on the stock market is the main force is the main provider of equity capital, the stock market is the basis for existence and Development, but the ability to access and analyze information and conditions, often in a weak position. To In the medium and small investors will not trade in a clear disadvantage, through legislation to make disclosure of information about the issuer undertake mandatory obligation is an inevitable choice will be the first attempt by disclosure of banking supervision and securities regulation is to unify the file < <banks and securities trading and derivatives business, the company's public disclosure of information>> that the file is the Basel Committee on Banking Supervision and the International Organization of Securities Regulation in November 1995 jointly issued by the Committees in the file on a range of derivative products trading banks and securities firms to further improve its information disclosure recommendations. [25] 2003 <<Bank of China Law>> Article 9 of the State Council authorized the establishment of financial supervision and management coordination mechanism, <<Banking Regulatory Law>> Article 6, <<Bank of China Law>> 35 respectively provide the banking regulatory agency of the State Council, People's Bank of China and the State Council shall supervise the management of other financial institutions supervision and management of information sharing mechanism. The work shows that: Although the Bank and securities companies in the information provided there are differences, but there is coordination between the two is possible, resulting in a unified banking and securities companies to open new ground in information disclosure if that disclosure of information in the file for the bank also only on derivatives products, then the disclosure in the New Basel Capital Accord was introduced in the banking supervision, the idea is to have an interest with the bank by making people understand the associated risks of the bank's asset portfolio and capital adequacy and take appropriate measures to achieve the bank's community supervision. As a result, banking supervision and capital adequacy regulatory authority supervision and inspection, it had also obtained the same with the securities regulatory methods and means of regulation - disclosure.

Thus, regulatory information for the promotion of securitization of credit assets of China's rise and Development of a multi-faceted role. I believe that in the present, the establishment and improvement of information monitoring system, and promote this as a breakthrough in China's financial supervision by the sub-sector regulators to the Development of a unified regulatory, financial relationship between innovation and financial supervision in the game to optimize financial regulation to achieve a strategic choice.

Third, building information monitoring system: the latest trends and inspiration

financial crisis, some U.S. states to take asset securitization approach to resolve the fiscal problems. China's current asset securitization has the potential re-emergence in this case, learn from American practice, the establishment of information monitoring system, to promote financial innovation products healthy Development, should be regarded as the wise choice.

Subprime mortgage crisis that has the financial regulation, whether regulatory authorities to monitor or function of asset securitization and other financial derivatives has become weak. The early institutional regulation, focus refers to a specific type of financial institutions, financial institutions were established to implement different control, but with the changing needs of financial markets and business cross-products of emerging, national financial services industry gradual change in regulatory philosophy, functional regulation [26] gradually replaced by the U.S. regulatory system is implemented in a multi-functional state of financial regulation, however, the sub-prime crisis and the spread of American-style reveals the function of regulation is not completely drawbacks of fact, in the functional regulation model, many U.S. financial regulatory agencies, regulatory bodies the power struggle between the both, there are loopholes in power, "regulatory race to the bottom" and "regulatory capture" and other negative effects have also been subject to accusations.

Supervision of the financial crisis reflect the source and thus make the legislative changes, Barack Obama on July 21, 2010 signed <<Dodd - Frank Wall Street Reform and Consumer Protection Act "(Dodd-Frank Wall Street Reform and Consumer ProtectionAct. the core of the bill include the Federal Reserve into a "super regulator" and the establishment of new consumer financial protection department, etc. But it is worth noting that the bill with people unified regulator as expected, it did not make the existing multi-material adjustments to the regulatory regime [27] can be said that the crisis after the U.S. financial regulatory reform, the focus is not "multiple" control to "one dollar" regulatory transition, the nature of regulatory agencies is to promote information sharing and coordination is a typical example of a new law to the Federal Reserve that the entire financial market systemic risk regulator of the synthesis and concentration of power in the information collection functions. empowerment include: (1 is related to the stability of financial markets the issue of the right to collect from all financial companies or other types of periodic reports, (2 right to a financial holding company for the consolidated supervision, (3 within the United States the right to monitor important payment, clearing and settlement systems and financial Company-related activities [28] The new inter-departmental Financial Stability Oversight Board (Financial Stability Oversight Council, FSOC first responsibility is also impressively highlights the regulatory functions of its information, that the federal financial regulatory agencies to collect information, assess the U.S. financial system risk, and financial director of the Institute to collect all bank holding companies and non-bank sector information [29]

Specific to the asset securitization financing tools, regulatory, the bill is to spare no effort to make up the information in the regulatory loopholes in the law to play a regulatory role: (1 requires SEC to continue to improve the transparency of the securitization market and standardization, the establishment of the SEC's asset-backed securities ( ABS issuers reporting system to give a clear mandate as to provide sufficient market information to solve complex structural problems of financial obscure (2) for all OTC derivatives, including credit default swaps market, implementation of a comprehensive regulation to improve the efficient market and transparency, to prevent the risk of penetration into the market, the entire financial system to prevent market manipulation and fraud, to avoid premature to enter the market this way is actually to solve the problem of asymmetric information market players, so immature market players is difficult to know retreat (3 further coordination futures and securities regulatory requirements. Commodity Futures Trading Commission (CFTC) and the Commission recommended to Congress, the provisions of the regulations and make the necessary changes in order to coordinate the regulation of futures and securities many securitized products is a combination of futures and securities and derivative variation results, which futures and securities regulators and collaborative exchange of information between regulators is particularly important.

In addition, U.S. financial regulators and judiciary cooperation between the information from time to time. Recent examples, in July 2010, SEC litigation directed at the Goldman Sachs of its debt-backed securities, Goldman Sachs in the housing market crash accused of misleading investors when purchase subprime-related products. Goldman Sachs, although a settlement with the SEC, but did not admit or deny the allegations related in the hearing, some members of Congress expressed the hope that the SEC can take further action to Goldman Sachs U.S. federal judge finally approved Goldman Sachs and the SEC settlement agreement, Goldman will pay $ 550 million subordinated debt to solve complex financial instruments disclosed in civil litigation related to, this is the history of Wall Street, one of the largest fines. SEC will continue to pursue financial institutions in 2007, 2008, the financial and housing market responsibility for the crisis in the United States Department of Justice and the SEC, including financial fraud, including law enforcement force has said it will continue to share information, for the financial crisis exposed the company to investigate other issues. [30] Similarly, the Basel Committee <<new capital revised framework agreement>>, will also be referred to the important position of Information Governance In 2009 July, the Basel Committee from the lessons of this financial crisis, made <<revised Basel framework>> It is due in 2004 Basel II has been a comprehensive revision of the criticism made by these critics that the new Basel Capital Accord for the banking sector systemic risk and risk-resisting ability to assess the overall lack of liquidity risk measurement methods and the lack of inadequate supervision of market risk, especially in trading account provision under the new risk capital shortage and lack of supervision, VaR (value at risk approach inherent weaknesses and stress testing methods have yet to be applied to sound, fair value accounting standards and the measurement and modeling cross-border supervision flawed. Basel Committee in accordance with the reflection and criticism, the three pillars of the new agreement a comprehensive revision is worth mentioning that, under the third pillar of the main amendments is to strengthen disclosure requirements, from four aspects of transparency: First, all components required level of capital must be fully disclosed, and disclosure of the buffer capital cases; Second, requiring periodic public disclosure of liquidity risk profile and management of quantitative and qualitative information, and the third for securitization, off-balance sheet exposures and trading account under the information disclosure requirements to give detailed guidelines to reduce the capital markets business to the banks' balance sheets of uncertainty, and finally, for the bank's payroll also need to be more clear and timely information disclosure. [31]

Not to mention <<revised Basel framework>> for our members, including all Basel instructive, is the U.S. subprime mortgage crisis in the reflection on lessons to strengthen supervision of the practice of information for our innovative products to strengthen supervision of financial There is also a reference. My earliest practice of securities retroactive to 1992, when the use of Sanya city, Hainan Sanya development and construction subsidiary of the Corporation as issuer, in order to Sanya single Chau district issued 800 acres of land subject to things, to hold identity cards of residents and Sanya City in Hainan total amount of body corporate sale of 2 billion real estate investment securities. The real estate investment through the issuance of securities, securities of its financing arrangements for real estate sales success at the time [32] banks in securitization is late, China <<Pilot Securitization of Credit Assets>> Launched in 2005, the National Development Bank and China Construction Bank as a pilot unit, has the securitization of credit assets and mortgage-backed securities pilot .2007 April, the State Council agreed to expand the pilot securitization of credit assets, including the Industrial and Commercial Bank, Shanghai Pudong Development Bank, including six banks to enter the ranks of .2007 at the end of the pilot, the securitization of assets in China is scheduled to end pilot into the routine of the issue on the occasion, the birthplace of asset securitization - the United States subprime mortgage crisis threatening the world.

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Can be expected, the sub-prime crisis, after the smoke powder, the global asset securitization wave of regulation will strengthen the information under the conditions of re-emergence of the structured finance instruments in our introduction across the board. However, China's commercial banks to share information mechanisms and information disclosure system is far from perfect, I made the following recommendations for asset securitization in the rise and development of our country make legal preparations.

First, build a financial information-sharing platform, the formation of financial information-sharing mechanisms, as the U.S. credit reporting widespread use of the national banking system to share customer financial information, not only reduces the cost of lending institutions, and to credit asset securitization possible. [33] China has also started to build the financial information sharing systems of China Banking Regulatory Commission and AQSIQ jointly promote the code of silver made substantial progress in information sharing, information sharing platform numeral system (hereinafter referred to as "Silver Code-sharing system" has been on April 9, 2010 in Beijing, Hebei, Shandong (Qingdao other three regions including the Industrial and Commercial Bank, China Everbright Bank two banking financial institutions in an open pilot information inquiry services. [34] through the "silver code-sharing system", China China Banking Regulatory Commission will effectively broaden the banking institutions risk management information channels, promote banking financial institutions and national macro-control departments and banks exchange of information between regulators, marking the beginning of China's banking regulators into the financial services regulatory information for effective prevention of financial Risk and regulatory system to build the foundation of information, but this alone is not enough to deal with the development of asset securitization. I believe that should be under the auspices of People's Bank of China to build a platform similar to the U.S. consumer credit, which is frequently introduced modern financial innovation Time is essential, as the founder of cybernetics Wiener famously said: "Social communication is the social glue together the building to the concrete," [35] then the sharing of financial information, financial building construction in modern society successful bonding device.

第二,在条件成熟时出台抵押贷款法,保证基础信息真实准确.金融资产证券化最基本的信息真实就是抵押合同的信息真实."只有信号足以信赖时,信号机制才能发挥作用."[36]从某种程度上来说,第一环节的贷款者信息真实是资产证券化后面各环节真实可靠的基础.首先,各环节的市场主体会回溯信息保证,中间任一环节的断裂都会导致信息链条的断裂,然而如果第一环节的基础信息错误,将使结构金融信息传递整体失败.其次,作为理性经济人,资产证券化中各主体会考虑各种行为惩罚,不仅包括法律责任承担,还包括失去市场机会等市场规范惩罚.经纪商会考虑如果真正出现夸大申请者收入的虚假称述时,什么惩罚将会发生,借款者会考虑是否承销商或者债券持有者将真正行使买回权利.但无论从哪一步责任向前回溯,都会追溯到基础信息是否真实可靠.正因为如此,一些国家和地区通过制定抵押贷款法,来保证基础信息的真实准确,如2008年4月3日明尼苏达州<<反掠夺性贷款法>>修正案生效,该法案被看作是美国各州立法中最复杂而综合性最强的一部法律.其中,被视为不合法行为[37]的规制值得借鉴.该修正案规定实施下述行为时为不合法:(1在抵押贷款过程中,或者在被抵押贷款者、借款者或者其他第三方依赖的过程中,明知使用或者引起使用任何口头的与文字的虚假陈述、引人误导或者隐藏信息的行为,(2在抵押贷款过程中,或者在被抵押贷款者、借款者、或者其他第三方依赖的过程中,明知使用或者为使用任何故意的与文字的虚假陈述、引人误导或者隐藏信息提供方便的行为,明知与文字虚假陈述、引人误导或者隐藏信息提供方便同等效果的行为,或者(3试图违反条款(1与(2的其他行为.抵押贷款法律制度能够将信息不透明和不对称、甚至信息欺诈从源头上切断,保证金融信息监管行之有效,这一作法值得我们借鉴.

第三,建立、完善金融机构和监管者对金融创新产品的全程信息披露制度,加强对金融消费者的保护力度.与国际监管趋势相适应,我国相继出台了一系列银行披露义务的法律法规. 2002年5月,中国人民银行曾印发过<<商业银行信息披露暂行办法>>,这对我国银行业的治理完善起到了积极地作用.次贷危机发生后,2007年7月3日,银监会在<<暂行办法>>的基础上,发布了<<商业银行信息披露办法>>(以下简称<<办法>>,对适用对象、监管主体等方面进行了修订.证监会也于2007年1月30日发布实施<<上市公司信息披露管理办法>>(以下简称<<管理办法>>.人民银行于2007年8月21日就基础资产池信息披露有关事项发布了公告,[38]要求信贷资产证券化试点各参与机构高度重视基础资产池信息披露工作,严格按照相关规章的要求披露基础资产池信息,切实保护投资者利益,防范风险.<<公告>>还要求<<发行说明书>>必须披露投资者在资产支持证券发行期限内查阅基础资产池全部具体信息的途径和方法等.基于以上文件和相关法律,证监会又制定并于2008年9月1日起开始施行<<公开发行证券的公司信息披露编报规则第26号——商业银行信息披露特别规定>>(以下简称<<特别规定>>.2009年8月中国银监会也颁布了<<商业银行资产证券化风险暴露监管资本计量指引>>(第五次征求意见稿,将巴塞尔委员会的最新变动融入其中,除了内部评估法(IAA未在本次征求意见稿得到体现外,其整体内容已趋完善,这意味着我国的资产证券化资本监管也即将与国际先进做法接轨.

但笔者认为,这仅仅是资产证券化融资信息披露的一个开端.国际清算银行副总经理HervéHannoun在2010年于IMF-FSB公开发表最高官员帮助执行具体计划的报告中阐明,银行统一地位的适当性信息分析是这次金融危机的关键所在:"在个体机构层面,一些银行信息在银行统一全球平衡表中体现为常规金融报告,然而,这些信息缺少衡量资产负债表压力的必要统计分析,诸如货币信息、到期日与交易对方当事人种类和双方资产和负债地位,以及表外信息等等.换句话说,金融消费者能得到的有效公众信息远远低于有效监管的需求水平."[39]在我国,这种情况也屡见不鲜.例如,2005年6月人民银行颁布过<<资产支持证券信息披露规则>>,但经过近些年的实践检验显示该规则相当原则性,并没有保障资产支持证券信息得到完整、全面的披露.以"建元2005-1"MBS为例,该证券<<发行说明书>>作出"交易各方的关联关系申明"后,并没有披露证券发行人(受托人"中诚信托投资有限公司"与信用评级机构"中诚信国际信用评级有限责任公司"之间是否存在关联关系,更没有说明为何最终信用评级报告仅有"中诚信国际"一家公司署名而不见"穆迪公司"信息.因此就信贷资产证券化具体的全程信息披露而言,笔者认为,应专门立法对其运作中不同角色的主体作出不同的要求:

其一,对原始债权人的披露要求包括:(1有关的数据资料,包括:在综合证券化和传统证券化项下贷款和贷款承诺的总金额,如果适宜,再将其区分为定期和循环证券化,循环证券化中的销售者权益要予以披露,通过证券化活动融资的数量,(2证券化资产的类型,(3原始债权人银行在其证券化活动中充当的角色,(4有关提供给证券化交易的追索权/信用增级产生的最大数量的信用风险的总体资料,并附加表明增级的支持仅限于这些合同义务,(5有关所提供的流动性便利的规模和性质的总体资料.上述前四项属于重大情形的,要单独予以披露.

其二,对发起人金融机构的披露要求包括:(1有关提供给证券化交易的追索权/信用增级产生的最大数量的信用风险的总体资料,并附加表明增级的支持仅限于合同规定的数量,(2有关所提供的流动性便利的规模和性质的总体资料.以上两项,属于重大情形的,要单独予以披露.

其三,对发行人金融机构的披露要求包括:(1所有评级机构或其他评估风险者的名字,(2有关交易法律结构的总结,(3所使用的资产转让形式,特别是任何有关原始债权人持有的残余权益,(4证券化资产的类型、选择的标准和替换的标准,(5所有证券化交易参与者的名字和他们充当的相应角色,(6证券化交易中信用增级的数额、形式和信用等级,并表明以所述的为限,没有进一步的信用支持,(7流动性便利的数额、形式、信用等级和偿付顺序,(8引发资产池早期摊销的触动点.

其四,对支持资产质量变化的信息跟踪披露要求:除了继续要求资产支持证券发行人在发行说明书中提示风险、信用评级机构在资产支持证券发行后进行跟踪评级外,有必要规定证券发行人和评级机构在证券发行说明书和信用评级报告中提示投资人"资产支持证券发行时的信用评级随着资产池的老化会发生信用下降或提升的情况".更为重要的是,应对金融机构及其负责人(包括二线管理者设计更高的注意义务和法律责任.换言之,金融机构及其负责人所承担的注意义务不应是"一般审慎之人"所应尽的注意义务,而应是"一般审慎银行家"所应尽的注意义务,他们向公众提供的信息也应该更全面和及时.

Summary

反思次贷危机所揭示的美国金融监管的失败,一个主要的教训就在于金融信息监管的碎片化无法发现和应对一体化的金融市场的系统性风险.割裂式的功能性金融监管的破产意味着必须另辟蹊径,构建信息监管指导下的新的金融监管模式.以金融信息为中心的监管体系,能够形成监管者、金融机构与金融消费者、甚至金融机构内部管理者之间多维度信息的充分交流与互动.在高级虚拟经济著称的金融帝国中,作为社会化融资方式的信贷资产证券化打通了银行、证券、保险、信托、房地产等行业之间的隔阂,而只有完善金融信息披露机制,立足于社会化信息的共享平台,才能弥合不同金融监管机构之间的监管缝隙和漏洞,协调彼此的监管政策和工具,有效防止系统性风险,也只有统合成为整体的信息监管才能满足资本市场及金融创新不断发展的需要.





Notes:
[1]参见钟义信:<<信息科学原理>>,北京邮电大学出版社2002年版,第47页.

[2]参见[法]费尔南·布罗代尔:<<15至18世纪的物质文明、经济和资本主义(第一卷>>,顾良、施康强译,生活、读书、新知三联书店1993年,第20页.

[3]同注[2],第10页.

[4]同注[2],第566页及以下.

[5]参见张晓晶:<<符号经济与实体经济——金融全球化时代的经济分析>>,上海三联书店、上海人民出版社2002年版,第32页.

[6]See Steven L.Schwarcz,Conflicts and Financial Collapse:the Problem of Secondary Management Agency Costs,26Yale J.on Reg.p.457,2009.

[7]早在1988年巴塞尔银行监管委员会就制定了<<关于统一国际银行的资本计算和资本标准的协议>>(简称巴塞尔协议,其中规定银行总资本与风险加权资产的比率不得低于8%,旨在促进各国间的公平竞争,并增强国际金融体系的安全性.2005年<<巴塞尔新资本协议>>只是修改了风险加权资产,对资本充足比率提出的最低要求仍然是8%.参见http://www.bis.org/publ/bcbs118.htm,2010年7月30日访问.

[8]参见易宪容:<<"影子银行体系"信贷危机的金融分析>>,载<<江海学刊>>2009年第3期.

[9]参见陈志武:<<金融的逻辑>>,国际文化出版公司2009年版,第133页.

[10] See USSec.&Exch.Comm'n ,Report on the Role and Function ofCredit Rating Agencies in the Operation ofthe Securities Markets,2003,pp.7-8.

[11]在当今美国资本市场上,主要的评级机构是标准普尔(STANDARD POOR's、穆迪(MOODY和惠誉(FITCH.以标准普尔为例,其在100多个国家为大约32万亿美元的债务证券提供了评级.单在2007年,标准普尔信用评级机构就发布了51万个评级,其中包括新评级和评级调整.参见http://www.standardandpoors.com/home/en/us,2010年7月30日访问.

[12] See John C.Coffee,Jr.,The Mortgage Meltdown and Gatekeeper Failure,9/20/2007N.YLJ5,p.1.

[13]参见符浩东:<<构建风险应急机制稳健推进金融创新——次级贷危机对中国资本市场的启示>>,载<<证券市场导报>>2008年第6期.

[14] See Harrison Scott Publications Inc.,MBSLosses GrowMurky as Defaults Rocket,Asset Backed Alert,September 11,2009.See http://www.securitization.net/article.asp? id=1&aid=9222,2010年7月30日访问.

[15] See OliverWilliamson,Corporate Governance,93YaleL.Jp1197,1984,HenryHansmann&ReinierKraakman,The End ofHistoryForCorporate Law,89Geo.LJp439,2001.

[16]典型的VaR模型只有小于1%的损失率(或者,有时候达到5%.See Joe Nocera,RiskMismanagement,NYTimes,Jan.4,2009,p.46.

[17]参见黎四奇:<<金融企业集团法律监管研究>>,武汉大学出版社2005年版,第282-283页.

[18]美国学者纳西姆·尼克拉斯·塔雷伯以"黑天鹅"效应来描述当今风险社会中的不确定性.他认为,一个单一观察到的黑天鹅,就能让千万次确认看到数百万只白天鹅所得到的泛化推论失效……黑天鹅事件使得你所不知道的事远比你所知的事更为重要.这种不确定性的研究通常被应用于金融领域中.参见[美]纳西姆·尼克拉斯·塔雷伯:<<黑天鹅效应>>,林茂昌译,大和书报图书股份有限公司2009年版,第9-12页.

[19]See OCC Advisory Letter AL 2003-2 February 21,2003.

[20]参见孙天琦、张晓东:<<美国次贷危机:法律诱因、立法解危及其对我国的启示>>,载<<法商研究>>2009年第2期.

[21]监管套利是指金融监管因遭特殊利益集团"劫掠"而导致监管套利的现象.

[22]美国1999年<<金融服务现代化法>>对"金融消费者"的定义是"为个人、家庭成员或家务目的而从金融机构得到金融产品或服务的个人".在我国金融立法中首次使用"金融消费者"概念是2006年12月银监会颁布的<<商业银行金融创新指引>>,该指引第4条规定:"金融创新是商业银行以客户为中心,以市场为导向,不断提高自主创新能力和风险管理能力,有效提升核心竞争力,更好地满足金融消费者和投资者日益增长的需求,实现可持续发展战略的重要组成部分."
[23]如有学者建议将我国的银监会、证监会和保监会合并,设立中国金融监督委员会.参见王大庆:<<一体化监管模式:未来全球金融监管的发展方向>>,载<<经济与管理研究>>2010年第3期.

[24]参见郭雳:<<信息、金融与金融法>>,载<<金融法苑>>2003年第1期.

[25]具体内容可参阅<<银行与证券公司交易及衍生产品业务的公开信息披露>>文件的第三部分"相关建议"的内容.

[26]功能性监管的概念最早是由1997年诺贝尔经济学奖得主Merton和Bodie提出的.它是相对于机构性监管而言,是针对特定类型金融业务,如银行业务、证券业务、保险业务分别加以监管,而对"边界性"金融业务亦明确监管主体,同时强化不同监管主体间合作的监管法律体系.

[27]新的法律虽然撤销了OTS和OCC,但又新增NBS、FSOC和CFPA,加之原有的FRS、SEC、CFTC、FDIC和NCUA等五家机构,机构数反而由原来七家增加到八家.

[28]参见陈斌彬:<<危机后美国金融监管体制改革述评——多边监管抑或统一监管>>,载<<法商研究>>2010年第3期.

[29]参见<<多德-弗兰克华尔街改革和消费者保护法>>第112条第2款A项."collect information from member agencies,other Fed-eral and State financial regulatory agencies,the Federal Insurance Office and,if necessary to assess risks to the United States financial system,directthe Office of Financial Research to collect information from bank holding companies and nonbank financial companies."
[30]参见<<高盛被罚仅为开始华尔街将继续被查>>,财讯网http://content.caixun.com/CX/01/52/CX0152sd.shtm,2010年8月2日访问.

[31]参见巴曙松:<<影响中国的金融监管变局>>,载<<财经>>2010年第1期.

[32]参见何小锋、刘永强:<<资产证券化理论及其在中国的实践——对中国一个早期案例的研究>>,载<<学术研究>>1999年第2期.

[33]美国曾通过一系列信用信息披露法案,比如1968年通过的<<贷款信息披露法案>>、1970年通过<<公平信用报告法案>>(后来1996年和2003年又对法案多处进行了修订、1974年通过<<平等信用机会法案>>、1975年通过的<<房屋按揭披露法案>>、以及1977年通过的<<社区再投资法案>>等等.参见邹浩:<<美国消费信用体系初探>>,中国政法大学出版社2006年版,第83页.

[34]参见<<银码共享银行风险监管新举措>>,中国银行业监督委员会网站http://www.cbrc.gov.cn/chinese/home/jsp/docView.jsp?docID=2010042284C2C20FDA415713FFEF30D27CF7F300,2010年4月28日访问.

[35]这里所讲的通讯是广义的,是指各地区之间的信息、能量和物质交换的总过程.[美]维纳:<<人有人的用处>>,陈步译,商务印书馆1978年版,第17页.

[36][美]柯提斯·J·米尔霍普、[德]卡塔琳娜·皮斯托著:<<法律与资本主义:全球公司危机揭示的法律制度与经济发展的关系>>,罗培新译,北京大学出版社2010年版,第41页.

[37] MINN.STAT.§609.822,subdiv.1,3,2008,SeeMark Ireland,After the Storm:Asymmetrical Information,GameTheory,and an Ex-amination of the"Minnesota Model"for National Regulation of Mortgage Brokers and Tomorrow's Predatory Lenders,available at http://www.ssrn.com/abstract=1525868.

[38]2007年第16号中国人民银行文告(总第252号.参见中国人民银行网http://www.pbc.gov.cn/publish/chubanwu/2920/2009/20091112152726642161446/20091112152726642161446-.html,2010年11月22日访问.

[39]HervéHannoun,"The financial crisis and information gaps",prepared for the G20 Finance Ministers and central bank Governors,Basel,8-9 April,2010.

[主要参考文献]
1.钟义信:<<信息科学原理>>,北京邮电大学出版社2002年版.

2.[法]费尔南·布罗代尔:<<15至18世纪的物质文明、经济和资本主义>>(第一卷,顾良、施康强译,生活、读书、新知三联书店1993年版.

3.张晓晶:<<符号经济与实体经济——金融全球化时代的经济分析>>,上海三联书店、上海人民出版社2002年版.

4.Steven L.Schwarcz,Conflicts and Financial Collapse:the Problem of SecondaryManagement Agency Costs,26Yale J.onReg.,2009.

5.陈志武:<<金融的逻辑>>,国际文化出版公司2009年版.

6.黎四奇:<<金融企业集团法律监管研究>>,武汉大学出版社2005年版.

7.[美]纳西姆·尼克拉斯·塔雷伯:<<黑天鹅效应>>,林茂昌译,大和书报图书股份有限公司2009年版.

8.[美]柯提斯·J·米尔霍普、[德]卡塔琳娜·皮斯托:<<法律与资本主义:全球公司危机揭示的法律制度与经济发展的关系>>,罗培新译,北京大学出版社2010年版.

9.易宪容:<<"影子银行体系"信贷危机的金融分析>>,载<<江海学刊>>2009年第3期.

10.符浩东:<<构建风险应急机制稳健推进金融创新——次级贷危机对中国资本市场的启示>>,载<<证券市场导报>>2008年第6期.

11.孙天琦、张晓东:<<美国次贷危机:法律诱因、立法解危及其对我国的启示>>,载<<法商研究>>2009年第2期.

12.郭雳:<<信息、金融与金融法>>,载<<金融法苑>>2003年第1期.

13.陈斌彬:<<危机后美国金融监管体制改革述评——多边监管抑或统一监管>>,载<<法商研究>>2010年第3期.

14.巴曙松:<<影响中国的金融监管变局>>,载<<财经>>2010年第1期.

15.Mark Ireland,Afterthe Storm:Asymmetrical Information,GameTheory,and an Examination of the"MinnesotaModel"forNational Regulation of Mortgage Brokers and Tomorrow'sPredatory Lenders,available at http://ssrn.com/abstract=1525868.

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