GATS對銀行業(yè)補(bǔ)貼的規(guī)制
發(fā)布時間：2018-12-18 00:54
【摘要】：在金融危機(jī)的經(jīng)濟(jì)環(huán)境下,各國政府紛紛出臺一系列的措施對本國銀行業(yè)進(jìn)行補(bǔ)貼,但這種補(bǔ)貼措施往往會對正常的國際銀行業(yè)競爭產(chǎn)生不利影響。因此,在國際法層面需要有相關(guān)的法律法規(guī)來約束各國的補(bǔ)貼行為。本文旨在討論《服務(wù)貿(mào)易總協(xié)定》(GATS)能否作為一種有效的手段對WTO成員方給予銀行業(yè)的補(bǔ)貼措施進(jìn)行規(guī)制,從而最小限度地影響到國際銀行業(yè)的正常競爭。 論文共分為引言、正文、結(jié)語三大部分。 引言部分主要交代了論文的寫作背景。在金融危機(jī)的經(jīng)濟(jì)環(huán)境下,各國政府為了應(yīng)對金融危機(jī)對本國經(jīng)濟(jì)造成的不利影響,紛紛針對不同的經(jīng)濟(jì)部門采取了相應(yīng)的補(bǔ)貼措施。銀行業(yè)作為一國舉足輕重的經(jīng)濟(jì)部門,自然成為各國政府補(bǔ)貼的首要對象。然而,隨著種種補(bǔ)貼措施的不斷出現(xiàn),越來越多的人們開始擔(dān)心這些以應(yīng)對經(jīng)濟(jì)危機(jī)之名而生的補(bǔ)貼措施,會對國際金融的正常競爭造成負(fù)面影響,最終影響到措施實施國以外的其他國家的經(jīng)濟(jì)發(fā)展。正是在這樣的背景下,研究國際法律層面對于補(bǔ)貼的規(guī)制就顯得尤為重要。 正文部分分為三章。 第一章主要論述了對銀行業(yè)補(bǔ)貼可能產(chǎn)生的負(fù)面效果及規(guī)制路徑。作為一國經(jīng)濟(jì)的重要組成部門,各國為了保持國內(nèi)金融系統(tǒng)的穩(wěn)定會對銀行業(yè)采取補(bǔ)貼措施。但為了能在競爭中獲得有利地位,一國對于銀行業(yè)出臺的補(bǔ)貼,很可能只對其本國銀行有利,從而導(dǎo)致國際銀行業(yè)公平競爭的扭曲。因此需要在國際法層面尋求對銀行業(yè)補(bǔ)貼的規(guī)制路徑。銀行業(yè)作為一種服務(wù)業(yè),邏輯上應(yīng)用WTO框架協(xié)議下的和服務(wù)貿(mào)易有關(guān)的服務(wù)附件即GATS來規(guī)制對銀行業(yè)的補(bǔ)貼。 第二章闡釋了與規(guī)范補(bǔ)貼措施相關(guān)的GATS中有約束力的法律條款以及附件。在GATS中雖然沒有直接針對補(bǔ)貼的條款,但有兩個相關(guān)的義務(wù)性規(guī)定:第一,GATS第ⅩⅦ條規(guī)定:在列入其承諾表的部門中,在遵照其中所列條件和資格的前提下,每個成員在所有影響服務(wù)提供的措施方面,給予任何其他成員的服務(wù)和服務(wù)提供者的待遇不得低于其給予本國相同服務(wù)和服務(wù)提供者的待遇。第二,GATS第Ⅵ條(1)規(guī)定:在已做出具體承諾的部門,每個成員應(yīng)確保所有普遍適用的影響服務(wù)貿(mào)易的措施,以合理、客觀和公正的方式予以實施。這兩個義務(wù)性條款為認(rèn)定某補(bǔ)貼措施或某補(bǔ)貼措施的適用是否違反GATS提供了評價的標(biāo)準(zhǔn)。但是在具體適用時,這兩個條款還有諸多的不確定性,因此,根據(jù)這兩個條款成功認(rèn)定某補(bǔ)貼措施或補(bǔ)貼措施的適用違反了GATS存在著一定的困難。 第三章分析了為“謹(jǐn)慎原因”采取的補(bǔ)貼措施。作為GATS適用的例外情形,這使得認(rèn)定某項補(bǔ)貼措施因違反GATS而應(yīng)受到限制的可能性變得更小。在判斷某補(bǔ)貼措施是否是為“謹(jǐn)慎原因”采取的補(bǔ)貼措施時,要認(rèn)真分析,防止實施國出于“保護(hù)主義”的目的以此為由逃避GATS項下的義務(wù)和承諾。 結(jié)語部分對全文做了一個簡短的總結(jié)。通過本文的分析,筆者發(fā)現(xiàn)GATS對于銀行業(yè)補(bǔ)貼確實存在著一些限制,但因為GATS相關(guān)義務(wù)性規(guī)定的模糊性,使得某項補(bǔ)貼措施只有在非常有限的情況下,才會被認(rèn)定為對GATS相關(guān)義務(wù)性規(guī)定的違反。而且,因為在GATS中還規(guī)定著GATS適用的例外情形,即使某項補(bǔ)貼措施或者其實施方式實質(zhì)上能被認(rèn)定為違反GATS,也不一定意味著這項補(bǔ)貼措施不能繼續(xù)實施。正因如此,WTO各成員方應(yīng)一起協(xié)商將GATS相關(guān)義務(wù)性規(guī)定進(jìn)一步明確化,使其能夠真正產(chǎn)生對于銀行業(yè)補(bǔ)貼的規(guī)制作用。
[Abstract]:In the economic environment of the financial crisis, governments have introduced a series of measures to subsidize domestic banks, but such subsidies often have a negative impact on the normal international banking competition. Therefore, there is a need for relevant laws and regulations at the level of international law to restrict the subsidies of States. The purpose of this paper is to discuss whether the GATS can be used as an effective means to regulate the subsidy measures of the members of the WTO to the banking industry, so as to minimize the normal competition of the international banking industry. The paper is divided into the introduction, the text and the conclusion. The introduction part mainly explains the writing of the paper Background: In the economic environment of the financial crisis, governments have taken corresponding compensation to different economic sectors in order to cope with the adverse effects of the financial crisis on the economy of the country The banking industry, as an important economic sector of a country, has naturally become the head of the government's subsidy. However, with the continued emergence of various subsidies, more and more people are starting to worry that the subsidies that have been generated in response to the name of the economic crisis will have a negative impact on the normal competition of international finance and, ultimately, to the adoption of other countries other than the implementation of the measures It is in such a background that the study of the international legal level for the regulation of subsidies To be important. The body part It is divided into three chapters. The first chapter mainly discusses the negative effects on the banking subsidy. As an important component of the country's economy, the stability of the domestic financial system will be in the interest of the bank in ord to gain a favourable position in that competition, a country's subsidy to the banking sector is likely to be beneficial only to its own bank, leading to the international banking sector The distortion of fair competition. Therefore, it is necessary to seek for the banking sector at the international level The regulation path of the subsidy. As a service industry, the banking industry is applied to the service trade-related service accessories under the WTO framework agreement, that is, GATS. The second chapter explains the binding of the GATS related to the regulation of the subsidy measures. In the GATS, although there is no provision for direct subsidies, there are two related mandatory provisions: first, GATS Article X VII provides that, subject to the conditions and qualifications listed therein, each member shall, subject to the conditions and qualifications listed therein, all influence In respect of the measures provided by the Service, the treatment of services and service providers to any other member shall not be less than the same services it is given to the State Second, GATS Article VI (1) states that, in the sector where a specific commitment has been made, each member shall ensure that all the universally applicable measures affecting trade in services are reasonable, objective and The application of the two compulsory provisions to determine whether the application of a subsidy or a subsidy is in violation of the GAT S provides the criteria for evaluation. However, in the case of a specific application, the two provisions still have a number of uncertainties and, therefore, the application of a subsidy or subsidy measure in accordance with these two terms is in violation of the GAT There is some difficulty in the S. The third chapter analyses the "the cause of the solution"
本文編號：2385042
[Abstract]:In the economic environment of the financial crisis, governments have introduced a series of measures to subsidize domestic banks, but such subsidies often have a negative impact on the normal international banking competition. Therefore, there is a need for relevant laws and regulations at the level of international law to restrict the subsidies of States. The purpose of this paper is to discuss whether the GATS can be used as an effective means to regulate the subsidy measures of the members of the WTO to the banking industry, so as to minimize the normal competition of the international banking industry. The paper is divided into the introduction, the text and the conclusion. The introduction part mainly explains the writing of the paper Background: In the economic environment of the financial crisis, governments have taken corresponding compensation to different economic sectors in order to cope with the adverse effects of the financial crisis on the economy of the country The banking industry, as an important economic sector of a country, has naturally become the head of the government's subsidy. However, with the continued emergence of various subsidies, more and more people are starting to worry that the subsidies that have been generated in response to the name of the economic crisis will have a negative impact on the normal competition of international finance and, ultimately, to the adoption of other countries other than the implementation of the measures It is in such a background that the study of the international legal level for the regulation of subsidies To be important. The body part It is divided into three chapters. The first chapter mainly discusses the negative effects on the banking subsidy. As an important component of the country's economy, the stability of the domestic financial system will be in the interest of the bank in ord to gain a favourable position in that competition, a country's subsidy to the banking sector is likely to be beneficial only to its own bank, leading to the international banking sector The distortion of fair competition. Therefore, it is necessary to seek for the banking sector at the international level The regulation path of the subsidy. As a service industry, the banking industry is applied to the service trade-related service accessories under the WTO framework agreement, that is, GATS. The second chapter explains the binding of the GATS related to the regulation of the subsidy measures. In the GATS, although there is no provision for direct subsidies, there are two related mandatory provisions: first, GATS Article X VII provides that, subject to the conditions and qualifications listed therein, each member shall, subject to the conditions and qualifications listed therein, all influence In respect of the measures provided by the Service, the treatment of services and service providers to any other member shall not be less than the same services it is given to the State Second, GATS Article VI (1) states that, in the sector where a specific commitment has been made, each member shall ensure that all the universally applicable measures affecting trade in services are reasonable, objective and The application of the two compulsory provisions to determine whether the application of a subsidy or a subsidy is in violation of the GAT S provides the criteria for evaluation. However, in the case of a specific application, the two provisions still have a number of uncertainties and, therefore, the application of a subsidy or subsidy measure in accordance with these two terms is in violation of the GAT There is some difficulty in the S. The third chapter analyses the "the cause of the solution"
本文編號：2385042
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