| The public's optimal perception of banking crisis is: it is an open endless struggle among different economic departments. The focus of this struggle is how to apportion the losses of the banking industry among all levels of society, which have been accumulated or being accumulated. With regard to banking crisis management, there are two policy instruments available. One is to take proactive measures, the other is to take remedial measures once the sign of crisis appears.1In order to prevent financial crisis, the only and most important measure available for the decision-maker is to create a stable environment for growth, which is also the main responsibility of the worldwide financial regulatory authorities to manage the banking crisis in international financial crisis. It is notable that the remedial measures are faced with a dilemma that the inefficiency and potential instability resulting from the remedial measures will exist in the evolutionary process of financial system. Thus, some people hope to cut the Gordian knot to solve out the troubled banks with immediate measures, such as bankruptcy liquidation. However, banking crisis is an event, while crisis intervention is a process. The hazards resulting from the hasty immediate measures will be more serious than the losses caused by the troubled bank itself. Because the banking crisis is of extremely complicated causes, the fragility of the banking system is a reflection of the deep-seated economic contradictions. Therefore, in the final analysis, the banking crisis management is a competition between financial stability and financial efficiency.The subject matter of this paper is derived from the consideration of the bank takeover wave in the international financial crisis. The significance of this paper is that the rethink of the legislation and practice of bank takeover in international financial crisis shall become an opportunity for deliberation and the basic starting point. Obviously, our banking crisis management system is not able to take effect as expected. This paper is based on the current situation of the disposal of banking risks and financial institution takeover and attempts to reconstruct our bank takeover system in post-crisis period. Also, as a brand-new attempt in domestic research field, I hope that such research is of some help to the development of the legislation and practice of the reorganization rescue and exit liquidation of troubled banks.The main conclusion hereof is that our bank takeover system shall be a multi-dimensional institutional framework which takes shape from the positive seeking of the balance between financial stability and financial efficiency during the cost-profit game playing process. I am of the opinion that our bank takeover system in post-crisis period shall be with the following characteristics: First, it shall take seeking the balance between financial stability and financial efficiency as the value goal. Efforts should be made to maintain financial system stable and promote finance competition efficiency and regulatory efficiency, so as to achieve the unity of stability and efficiency under the balanced framework. Second, for legal position, it is interconnection of reorganization rescue and exit liquidation, which assembles institutional advantages of rescue and exit system and aims at seeking the middle line between the respect for the regulatory authorities'privilege and the assurance of fair disposition of troubled banks. Also, it is a systemic opinion to solve the difficulties of troubled banks, that is,"Rescue But Not Exit"and"Exit Unable". Third, as for the system construction, bank takeover is a positive right-balanced multi-dimensional institutional framework, which reflects regulatory effort to maintain multi-interest, and is beyond the comparison of sole risk supervision, fund rescue and bankruptcy liquidation, etc. Fourth, with regard to realizing approaches, it shall take the game playing comparison method based on cost-profit perspective, which will exert direct and fundamental influence on the process of takeover decision-making and realization and also is the source of the vitality of takeover. The other chapters hereof conduct research and investigation on the issue of how to operate this institutional framework, specifically including takeover bodies,,implementation process, rescue measures, supervisory review as well as supporting system.This paper is composed of six chapters, of which the main contents are as follows:The First Chapter—Empirical Analysis of Bank TakeoverThis chapter describes the bank takeover experiences of all the countries in the international financial crisis background, reviews the bank takeover history during the three major financial crisis, defines the strategic position of takeover in the banking crisis management, takes the United States, Canada and Italy as examples to carry out detailed analysis, and makes empirical analysis of the previous disposition of banking risk and financial institution takeover in China.From a comparative law perspective, the receiver of the U.S. mode is clothed with super power to manage and dispose of troubled banks; unified inspection of different regulatory authorities and takeover mutual collaboration of Canada mode; provisional operation, special management and compulsory liquidation of Italy mode, which provide mode reference and experience for our reconstruction.From the domestic perspective, there is a dilemma that too much rescue leads to serious moral hazards, but the incomplete legal system of exit and liquidation for financial institutions gives rise to the prolonged disposition. Bank takeover system has the institutional advantages of rescue and exit system, which is of great realistic significance to China. But from the view of our takeover legislation and practice, unfortunately, the problems that the objective positioning is too narrow, takeover subject matter is too principle, rights and responsibilities is unclear, procedures is lack of clarity, etc., are still in existence. The Second Chapter-- Theory basis of Bank TakeoverThis chapter makes deep discussion of the theory from three perspectives, namely, Supervision Theoretical Basis, Neo-institutional Economics Analysis and Logic of New Public Management, to reveal the legitimacy basis of the existence of bank takeover system. And then proposals for reconstruction of our bank takeover system are made.Supervision Theoretical Basis of bank takeover consists of Finance Instability Hypothesis, Information Asymmetry Theory and Infectious theory, with a focus on the interpretation of the causes and dynamics of bank takeover system, which aims to solve the issue of why to takeover troubled banks.Neo-Institutional Economics Analysis of bank takeover lays emphasis on the interpretation of the dominant advantage of the power of public administration in bank takeover, which aims to solve the issue of who is suitable to lead takeover process. The State Theory provides legal basis for the bank regulatory authority to implement takeover on behalf of the State; Path Dependence and Mode Selection Theory illustrates that bank takeover shall attach importance not only to the realistic condition of the current institutional change, but even more to cultural inertia of the existence and development of the financial system and administrative system; Principal-Agent Theory is of the opinion that takeover led by the bank regulatory authority provides for social-oriented management mode.New Public Management of bank takeover mainly solves the issue of how to takeover bank, which applies three major research methods of Methodological Individualism, Hypothesis of Economic Man and Trading Theory, pointing out that the current economic analysis of Chinese bank takeover should be on the basis of deductive reasoning, which is supplemented by quantitative analysis and finally towards the scientific path subject to quantitative analysis. At the same time, it provides a theoretical support for establishing binding mechanism for government rent-seeking action in takeover process.This paper points out that the legal system of bank takeover in post-crisis period shall be a multi-dimensional institutional framework which stems from positively seeking of the balance between financial stability and financial efficiency during the cost-profit game playing process and, gives a broad overview of the value goal, legal position, systematic framework and realizing approaches.The first two chapters are of general nature, which mainly introduce the international practice and realistic benefits, illuminate the basic concepts and theoretical basis, and prove the necessity and possibility to reconstruct our bank takeover system, laying a foundation for the researches in the third chapter to the sixth chapter.The Third Chapter—Takeover Body undertaking Powers and ResponsibilitiesThis chapter illustrates the different status and roles of banking regulatory authority, central bank, financial departments and deposit insurance institutions in bank takeover process, crystallizes the bodies for bank takeover and the responsibilities category, and makes recommendations on three points, that is, the conflicts of interest, coordination forms and the allocation of responsibilities in coordination among the bodies, information sharing and unconventional practice.This paper is of the opinion that, with regard to the bank regulatory authority, the successful takeover decision-maker and organizer must try best to distinguish and correct the reversion incentive mechanism which easily leads to system failure and coordinate inside and outside relationships well. Also, the vested necessary power to rescue and liquidation shall be given to the receiver and asset manager through the forward incentive administration way; as to Central Bank, it is especially essential to obtain the balance point in final loan, to find meeting point in system risk maintenance and to guarantee the safety in payment system; for finance departments, they are faced with difficulties of supervision vertical integration and risk localization, so that it shall accurately grasp the boundary between act and omission as takeover order vindicator and"reveal"helper; as for deposit insurance organization, where it concurs to play the role of insurer, liquidator and receiver, it must avoid the anxiety in operation due to the role change. The Fourth Chapter—Procedure of Bank TakeoverThis chapter mainly analyses the standards of bank takeover, early-warning mechanisms, start-up procedure, realization and termination.With regard to standards, this paper proposes to deem takeover as a discretionary power, which should be specialized by generalization and enumeration doctrines. Four specific categories of takeover standards are formulated, namely, serious capital inadequate, bankruptcy and weighing by regulatory authorities, lack of liquidity and capital adequacy but can be taken over and so on.Early-warning mechanisms are divideed into two categories: the bank organization takeover risk warning and the system risk indicator warning. Regarding the former, the banking regulatory authority shall be the body to construct a multi-level, scientific and dynamic risk assessment and early-warning system, to develop risk evaluation model, to implement classified and differential supervision, and to realizes information sharing. Regarding the latter, the central bank shall be the main body. The system should stress on the interactive relation between macro economic movement and financial system, pay attention to the stability of the movement of banking system deemed as the main financial industry, distinguish the indication of intrinsic weak point of banking system, implement preventive measures and adopt prompt rescue policies to prevent the financial instability. Where the preventive and rescue measures fail, it shall activate financial safety net fully, and carry out takeover promptly.Start-up procedure includes the application and the consideration. With regard to takeover procedures, the banking regulatory authority, central bank, deposit insurance institutions established in the future, financial institutions, majority shareholders holding up to a certain proportion and a certain period, and creditors holding a certain amount of bonds shall have the right to submit application. This chapter conducts the consideration of takeover is Feasibility, promoting private relief and prevention of systematic risk.The concrete implementation of takeover includes announcement, concern about public opinion, comprehensive transition and determination. Announcement focuses on the just, fair and open position, to ensure confidence and avoid a run; concern about public opinion focuses on understanding of domestic and international reaction, to clarify or explain timely and make adjustments to improve; comprehensive transition focuses on the clean-up of credit and debt after takeover; determination focuses on the choice of methods and feasibility studies, comparative analysis of their likelihood of success, cost and revenue accounting of forecast, and the estimable execution time. Among them, comprehensive transition and determination are the two core areas, particularly critical.Finally, the takeover terminates for the reason of rebirth, merger or bankruptcy.The Fifth Chapter—Rescue Measures of Bank TakeoverThis chapter conducts comparative study on specific rescue measures on the premise of the clear rescue principles, with an emphasis on a special method, namely, prosecution of criminal responsibility.Referring to the rescue principle of takeover, the thesis pointed out time management impacts disposal costs, and rapid disposal can reflect the market value of the object more rapidly. In the cost minimization principle, we should see there is no better or worse of the relief method itself, the key is its applicable objects and time, and we should try our best to maximize capital management and debt approach predictable, and encourage the introduction of the private sector. Effective legislation can directly affect the takeover costs. The multi-stakeholder balance of takeover rescue can contribute to the total social welfare.In terms of the choice of specific relief measures, this chapter pointed out, as the emergency platform and strong support of bank takeover, the deposit insurance system should be introduced as soon as possible. Annexation measures adopted should take into account the particularity of the object, and should take special consideration over the merger model, the acquiring qualifications, and matching with the law. Acquisitions and undertake, as a common measure, focus on asset disposal strategies and methods of optimization. Transition banks are generally used under the circumstances that are large and complex, and may easily lead to systematic risk. If they are used, "green channel" must be opened. Before government assistance, we should make it clear whether there is systemic risk, and whether other private relief measures have been used up. Stabilization fund, as a kind of time-with the major financial risks of the emergency measures , when necessary, can be tried in China. The ensurance of holding company accords with the public interest, but its application must be strict conditions.With regard to prosecution for illegal responsibility, the competent authority shall be entrusted with predominant investigation power on civil and criminal aspects, and stress that when conducting civil action, it shall take cost-benefit consideration.The Sixth Chapter—Supervision and Review of Bank TakeoverThis chapter designed the bank supervision and review mechanism in public accountability, information disclosure system, administrative review and judicial review and other aspects.This chapter points out that public accountability must be a receiver to assume responsibility and to strike a balance between security exemptions.Information disclosure is conducive to financial consumer protection, smooth development of takeover and regulatory efficiency. Its function in bank takeover can not be ignored. The competent authorities should make more efforts on the collection and arrangement of information to establish a foundation of data monitoring. Meanwhile, the competent authorities, as the main body of information disclosure, should ensure that the content and requirements of information disclosure is conducive to the goal of takeover .This chapter poses that to determine the rationality of the takeover decision, the review body with necessary expertise in banking sector shall make review firstly. The most ideal approach is to establish an independent review committee at the same level (which may be non-permanent) to review the takeover decision made by the banking regulatory authority, which shall consists of the members from bank regulatory authority, central bank, financial departments, insurance regulatory authority (if necessary) and securities regulatory authority (if necessary). Judicial review should ensure correct application of laws and regulations, avoid wrongful use and abuse of discretion. However, it can not replace the decision made by the banking regulatory authority with its judge.
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