2001 Fiscal Year Final Research Report Summary
Bankruptcy Law in Industrial Restructuring and Financial Reform : How Control Risks?
| Project/Area Number |
12620041
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | HOKKAIDO UNIVERSITY |
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Principal Investigator |
SEGAWA Nobuhisa Hokkaido Univ., Grad. School of Law, Prof., 大学院・法学研究科, 教授 (10009847)
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| Co-Investigator(Kenkyū-buntansha) |
SHIKANO Yoshiaki Doshisha Univ., Fac. of Econ., Prof., 経済学部, 教授 (60241767)
KITAMI Ryoji Hokkaido Univ., Grad. School of Law, Prof., 大学院・法学研究科, 教授 (00312330)
TAKAMI Susumu Hokkaido Univ., Grad. School of Law, Prof., 大学院・法学研究科, 教授 (20009848)
OKANIWA Masashi Hokkaido Univ., Grad. School of Law, Asso. Prof., 大学院・法学研究科, 助教授 (60272407)
ANDERSON Kent Hokkaido Univ, Grad. School of Law, Asso. Prof., 大学院・法学研究科, 助教授 (80322783)
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| Project Period (FY) |
2000 – 2001
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| Keywords | Liberalization of Finance / Deregulation / Servicing / Bankruptcy / Liquidisation of Asset / Securitization / Secured interests / Cross-Border Insolvency |
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| Research Abstract |
This research aimed to investigate the recent reforms of financial law and bankruptcy law which are due to economic and financial structural changes and made some proposals for legislation and legal practice.
The research results are grouped in three parts.
1. The first concerns securitization and the research showed three points. First, the practice has created , various types of securitization, but they are to be observed as means to manage various inevitable risks of finance. Second, the study of the history of practice and legislation of securitization in Japan shows its immaturity and particularity. Third, the examination of legal problems of securitization proposes some new visions. The question of validity of "all account receivables" is in reality the question how to secure the future freedom of the originator and how to protect the transactional creditors against the financial creditors. As for the argument on " true sale or secured transaction ", the question is, besides the requirement of filing, whether or not if the right of the transferee is restricted in the procedure of bankruptcy. In all these respect, two types of securitization are to be distinguished, that is the securitization of pure asset as home loans and that of credit originating from some enterprise.
2. The second concerns servicer law. The research analyzes the history of the legislation of the Servicer Law and make a policy proposal of its revision.
3. The third part concerns cross-border insolvency. The research points out that the traditional territorialism is based on the financial conditions of 80 years ago and obliged to be replaced by universalism because of the expansion of the cross-border commerce and finance. Considering the experience of Common Law countries, the study proposes some concrete criteria about the recognition of foreign insolvency proceeding.
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