| In the Core Principles for Effective Banking Supervision and the Core Principles for Effective Deposit Insurance Systems,the Basel Committee on Banking Supervision pointed out that a quick and orderly mechanism for banking market disposal and withdrawal can effectively prevent the financial crisis spreading and maintain financial stability,and is very essential for a country to establish an effective financial system.As early as 2005,the State Council had made it clear that it was time to establish and improve the market exit mechanism for financial institutions in the Opinions on Deepening the Reform of Economic System.However,to date,China is still in the absence of the market exit mechanism for commercial banks.With the promulgation and enforcement of China’s Deposit Insurance Regulations,China has established a formal deposit insurance system,and provides a precondition and guarantee system for the establishment of China’s commercial bank insolvency legal system.In order to improve the socialist market economic system,promote the healthy and stable development of economy and opening up,the State Council listed Commercial Bank Insolvency Risk Disposal Ordinance as a preparatory project in its Notice on Issuing the 2015 Legislative Work Plan for the State Council and designated that China Banking Regulatory Commission would be in charge of drafting.The Ministry of Justice also took commercial bank market withdrawal mechanism as the 2015 annual national rule of law and legal theory research project.In addition,Circular on Forwarding the Guiding Opinions of China Banking Regulatory Commission on Promoting the Development of Private Banks(Guo Ban Fa [2015] No.49)the State Council also stressed that it was a must to continue improving the market exit mechanism for financial institutions,to minimize the impact resulting from individual financial institutions’ failure,and to promote private banks to develop smoothly.In consideration that the commercial banks still play an important role in financing in a state’s financial system,and of necessity and particularity of the commercial bank insolvency,it is the core task of the research and legislation of the state’s commercial bank market exit mechanism to seek a quick and prudent resolution for the commercial banks in trouble.An effective commercial bank insolvency legal system can not only bring out the deposit insurance system’s role in enhancing the public’s confidence on the commercial banks and the financial system,but also maintain the stability of the financial system.In recent years,China’s financial industry has been developing very quickly,private banks have been approved of opening and operation,all kinds of “Bao” financial products,P2 P,crowd funding and other Internet banking spring up everywhere,the ceiling on deposit interest rates has been being removed,the commercial banks in China is facing unprecedented development opportunities and the competition pressure.Where there is competition,there will be the laws of the market that it will play a role in the survival of the fittest.To deal with the failure of the commercial banks resulting from the market competition,it is necessary to establish an insolvency legal system to make sure that the failing commercial banks can orderly exit from the market.An in-depth research on the legal system of the commercial bank bankruptcy has an important theoretical significance and practical value to the establishment of the China’s commercial banks bankruptcy legal system.In theory,it is helpful to make up the deficiency of domestic theory research about the commercial bank insolvency legal system.In practice,it can provide solutions to a series of controversies associated with the China’s commercial bank insolvency legal system,make the disposal of the commercial banks in trouble take into account the social fairness and justice in the pursuit of social stability,order and efficiency,and lead the failing commercial banks to exit from the market in order.This dissertation starts from theses hot issues such as the basic concept of the commercial bank bankruptcy legal system and takes the basic theory,the basic principles,the legislation mode selection,the participants,the power structure and the balance of their rights and interests throughout the commercial bank bankruptcy legal system,as well as the commercial bank bankruptcy disposal mechanism and guarantee mechanism as the main research contents.Based on the comparative study on the commercial bank bankruptcy theory and practical experience at home and abroad,and combined with the actual situation in China at the present stage,this dissertation elaborates how to establish the commercial bank insolvency legal system in China.This dissertation is composed of three parts: a brief introduction,the main body and the conclusion,which is divided into 6 chapters.The first chapter is the introduction of this dissertation,introducing the background,the significance,the literature review,writing methods and the innovation points and deficiencies of this dissertation.The second chapter is an overview of the legal system of the bankruptcy of commercial banks.This chapter fisrt analyzes the concept and scope of commercial banks.After determining the connotation and extension of the research object,this dissertation explains the concept and legal characteristics of the bankruptcy of commercial banks through the interpretation of the legal meaning and characteristics of the bankruptcy of commercial banks.Starting from the generality and particularity between the commercial bank bankruptcy law and common enterprise bankruptcy law,and the origin and characteristics of the commercial bank bankruptcy legal system,this chapter does up the advantages and disadvantages of the commercial bank bankruptcy legal system.The third chapter is about the legislative practice of the legal system of the commercial bank bankruptcy.First,this chapter of American investigates and summarizes the commercial bank bankruptcy legal system in England and the U.S.,then analyzes the legislative background and the characteristics of their commercial bank bankruptcy legal system.At the end of this chapter,this dissertation conducts a comprehensive review of the status quo of China’s commercial bank insolvency legislation,and analyzes the defects and shortcomings of the existing commercial bank bankruptcy legislation in China.The fourth chapter is about the basic issues when establishing China’s commercial bank bankruptcy legal system,including the applicable scope of this law,the value orientation of China’s commercial bank bankruptcy legal system,the legal principles and the legislation mode.The fifth chapter is about the participants and the balance of their rights and interests in China’s commercial bank bankruptcy legal system.On the basis of comprehensive consideration of various realistic factors,this chapter elaborates the participants and the balance of their rights and interests in the commercial bank bankruptcy legal procedures,and focuses on the analysis of the following two issues: one is the participants in the procedure of the bankruptcy of commercial banks and its duty and authority;the other is how to balance the rights and interests among the participants in the procedure of bankruptcy of commercial banks.The sixth chapter is about the establishment of China’s commercial banks bankruptcy legal system.Based on China’s commercial bank insolvency legislation and practice,the experience from foreign legislation and the Regulations on Deposit Insurance of PRC,This chapter puts forward to establish and improve China’s commercial banks insolvency legal system which takes the insolvency precaution and security mechanism,the relief mechanism and market exit mechanism as center.This chapter focuses on the following legal issues: the bankruptcy precaution and security system which takes the deposit insurance system as the core;the relief mechanism which takes the takeover and reorganization as the core;and the market withdrawal mechanism which takes the bankruptcy liquidation as the core. |
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