我國商業(yè)銀行次級債法律制度研究
發(fā)布時間：2018-10-15 09:11
【摘要】：自20世紀(jì)初美國發(fā)展次級債務(wù)關(guān)系以來,次級債作為補充銀行資本的一種工具,日漸得到了國際銀行界的認(rèn)可和青睞,目前在我國的應(yīng)用也很廣泛。2003年銀監(jiān)會頒布的銀監(jiān)發(fā)[2003]25號《關(guān)于將次級定期債務(wù)計入附屬資本的通知(已廢止)》在我國確立了商業(yè)銀行次級債這一新事物,為商業(yè)銀行通過發(fā)行次級債補充銀行資本開辟了道路。此后,《商業(yè)銀行次級債券發(fā)行管理辦法》、《關(guān)于完善商業(yè)銀行資本補充機制的通知》和《商業(yè)銀行資本管理辦法》等商業(yè)銀行次級債相關(guān)的法律規(guī)范陸續(xù)頒布。這些規(guī)章制度的出臺對我國建立并規(guī)范銀行次級債市場起到了至關(guān)重要的作用。但與國外發(fā)達國家相比,我國關(guān)于次級債的實踐與立法的時間還比較短,其法律環(huán)境尚不健全,存在許多法律問題。商業(yè)銀行在利用次級債便捷、高效、靈活的優(yōu)點補充資本,調(diào)整資本結(jié)構(gòu)的同時,也引發(fā)了一些實踐上的法律問題與銀行的風(fēng)險隱患。同時,在理論上,我國學(xué)者對銀行次級債的研究多是在金融領(lǐng)域,而對其法律制度的研究則并不多。因此,對我國商業(yè)銀行次級債的法律制度進行研究,不僅具有緊迫的現(xiàn)實意義,而且具有重要的理論意義。本文以我國商業(yè)銀行次級債的法律制度為研究對象,共分四部分。 第一部分介紹商業(yè)銀行次級債的基本理論,包括商業(yè)銀行次級債的概念、法律性質(zhì)及功能。 第二部分以比較的方式闡述美英法德四個國家國家商業(yè)銀行次級債的法律制度,為第四章提出完善建議做借鑒。 第三部分根據(jù)我國現(xiàn)有的商業(yè)銀行次級債的相關(guān)法律規(guī)定,分析我國商業(yè)銀行次級債的法律制度存在的問題,包括：第一,商業(yè)銀行次級債的法律效力問題；第二,商業(yè)銀行次級債的特殊屬性給我國的《合同法》以及《破產(chǎn)法》帶來的疑問；第三,目前我國對商業(yè)銀行次級債進行監(jiān)管的法律規(guī)范不完善。 第四部分針對上一部分所提出的問題,提出解決問題、完善商業(yè)銀行次級債監(jiān)管制度的建議。包括：第一,將法定次級債加以專門立法,或者在基本法律中加以規(guī)定。第二,在《合同法》領(lǐng)域,確認(rèn)并建立完備的利他合同制度,并通過規(guī)定附加條件的方式對次級債權(quán)人與債務(wù)人的抵消權(quán)作出限制；在《破產(chǎn)法》領(lǐng)域引入信托機制,并認(rèn)可在次級債協(xié)議中排除次級債權(quán)人的抵消權(quán)的約定,以及賦予次級債權(quán)人在破產(chǎn)程序中相關(guān)的必要權(quán)利。第三,通過健全我國商業(yè)銀行次級債的發(fā)行機制、嚴(yán)格我國商業(yè)銀行次級債的互持制度、完善我國商業(yè)銀行次級債的信息披露制度,來完善我國商業(yè)銀行次級債的監(jiān)管規(guī)范。
[Abstract]:Since the United States developed the relationship of subprime debt in the early 20th century, subprime debt, as a tool to supplement the capital of banks, has been increasingly recognized and favored by the international banking community. At present, it is also widely used in our country. In 2003, the Banking Regulatory Commission issued the Circular of Banking Supervision and issuance [2003] 25 (annulled) on the inclusion of subordinated periodic debt into the subsidiary capital, which has established the new thing of commercial banks' subordinated debt in China. Commercial banks through the issuance of secondary debt to replenish bank capital opened the way. Since then, the measures for the issuance of subordinated bonds of commercial banks, the notice on perfecting the capital supplementary mechanism of commercial banks, and the measures on capital management of commercial banks have been promulgated one after another. These rules and regulations have played a vital role in establishing and standardizing the secondary debt market in China. However, compared with the developed countries, the practice and legislation of the subordinated debt in our country is relatively short, its legal environment is not perfect, and there are many legal problems. Commercial banks make use of the advantages of convenient, efficient and flexible to supplement capital and adjust the capital structure, at the same time, it also leads to some practical legal problems and risk risks of banks. At the same time, in theory, Chinese scholars mostly study the secondary debt of banks in the field of finance, but the study of its legal system is not much. Therefore, the study on the legal system of commercial banks' subordinated debt is not only of urgent practical significance, but also of important theoretical significance. This paper focuses on the legal system of secondary debt of commercial banks in China, which is divided into four parts. The first part introduces the basic theory of commercial bank subordinated debt, including the concept, legal nature and function of commercial bank subordinated debt. The second part expounds the legal system of the commercial banks of America, Britain, France and Germany in a comparative way, and makes some suggestions for the improvement of the fourth chapter. The third part analyzes the problems in the legal system of the subordinated debts of the commercial banks according to the relevant legal provisions of the commercial banks in our country, including: first, the legal effect of the subordinated debts of the commercial banks; second, The special attribute of the subordinated debt of the commercial bank brings the question of the contract law and bankruptcy law of our country. Thirdly, the legal norm of the supervision of the subordinated debt of the commercial bank in our country is not perfect at present. In the fourth part, the author puts forward some suggestions to solve the problems and perfect the supervision system of commercial banks' subordinated debt. Include: first, the statutory secondary debt to specific legislation, or in the basic law to provide for. Second, in the area of contract law, to recognize and establish a complete system of altruistic contracts and to restrict the rights of set-off between secondary creditors and debtors by imposing conditionalities; and to introduce trust mechanisms in the area of insolvency law, It also endorses the agreement to exclude the right of set-off of secondary creditors in the subprime debt agreement and to grant the secondary creditors the necessary rights in insolvency proceedings. Thirdly, by perfecting the issuing mechanism of the subordinated debt of the commercial banks of our country, strictly enforcing the mutual holding system of the subordinated debts of the commercial banks of our country, and perfecting the information disclosure system of the subordinated debts of the commercial banks of our country, we should perfect the supervision and regulation of the subordinated debts of the commercial banks in our country.
【學(xué)位授予單位】：遼寧大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D922.28
[Abstract]:Since the United States developed the relationship of subprime debt in the early 20th century, subprime debt, as a tool to supplement the capital of banks, has been increasingly recognized and favored by the international banking community. At present, it is also widely used in our country. In 2003, the Banking Regulatory Commission issued the Circular of Banking Supervision and issuance [2003] 25 (annulled) on the inclusion of subordinated periodic debt into the subsidiary capital, which has established the new thing of commercial banks' subordinated debt in China. Commercial banks through the issuance of secondary debt to replenish bank capital opened the way. Since then, the measures for the issuance of subordinated bonds of commercial banks, the notice on perfecting the capital supplementary mechanism of commercial banks, and the measures on capital management of commercial banks have been promulgated one after another. These rules and regulations have played a vital role in establishing and standardizing the secondary debt market in China. However, compared with the developed countries, the practice and legislation of the subordinated debt in our country is relatively short, its legal environment is not perfect, and there are many legal problems. Commercial banks make use of the advantages of convenient, efficient and flexible to supplement capital and adjust the capital structure, at the same time, it also leads to some practical legal problems and risk risks of banks. At the same time, in theory, Chinese scholars mostly study the secondary debt of banks in the field of finance, but the study of its legal system is not much. Therefore, the study on the legal system of commercial banks' subordinated debt is not only of urgent practical significance, but also of important theoretical significance. This paper focuses on the legal system of secondary debt of commercial banks in China, which is divided into four parts. The first part introduces the basic theory of commercial bank subordinated debt, including the concept, legal nature and function of commercial bank subordinated debt. The second part expounds the legal system of the commercial banks of America, Britain, France and Germany in a comparative way, and makes some suggestions for the improvement of the fourth chapter. The third part analyzes the problems in the legal system of the subordinated debts of the commercial banks according to the relevant legal provisions of the commercial banks in our country, including: first, the legal effect of the subordinated debts of the commercial banks; second, The special attribute of the subordinated debt of the commercial bank brings the question of the contract law and bankruptcy law of our country. Thirdly, the legal norm of the supervision of the subordinated debt of the commercial bank in our country is not perfect at present. In the fourth part, the author puts forward some suggestions to solve the problems and perfect the supervision system of commercial banks' subordinated debt. Include: first, the statutory secondary debt to specific legislation, or in the basic law to provide for. Second, in the area of contract law, to recognize and establish a complete system of altruistic contracts and to restrict the rights of set-off between secondary creditors and debtors by imposing conditionalities; and to introduce trust mechanisms in the area of insolvency law, It also endorses the agreement to exclude the right of set-off of secondary creditors in the subprime debt agreement and to grant the secondary creditors the necessary rights in insolvency proceedings. Thirdly, by perfecting the issuing mechanism of the subordinated debt of the commercial banks of our country, strictly enforcing the mutual holding system of the subordinated debts of the commercial banks of our country, and perfecting the information disclosure system of the subordinated debts of the commercial banks of our country, we should perfect the supervision and regulation of the subordinated debts of the commercial banks in our country.
【學(xué)位授予單位】：遼寧大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D922.28
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