1, on financial market access
The competent financial department of the government has stipulated the standards for the establishment of financial institutions, also known as the access qualification of financial markets. Due to the high risk and systematicness of financial market, governments all over the world have strictly reviewed the access conditions of financial market, and all of them have stipulated higher access conditions.
Compared with the international average level, China's financial market access qualification is relatively high. For example, there are five conditions for the establishment of a commercial bank: there are articles of association that meet the provisions of the Commercial Bank Law and the Company Law; It has a minimum registered capital that meets the requirements of the Commercial Bank Law; Having directors (presidents), general managers and other senior managers with professional knowledge and business experience; Having a sound organizational structure and management system; Having business premises, safety precautions and other business-related facilities that meet the requirements. The minimum registered capital requirement is 1 100 million yuan. The minimum registered capital of urban cooperative commercial banks is 6,543.8 billion yuan. In contrast, China stipulates that the minimum registered capital of foreign-funded commercial banks is 40% or less.
In China, the establishment of a securities company must be examined and approved by the the State Council Securities Regulatory Authority. The minimum registered capital for establishing a comprehensive securities company is 500 million yuan, and the minimum registered capital for establishing a brokerage securities company is 50 million yuan.
In China, the establishment of a securities registration and settlement institution must be approved by the the State Council Securities Regulatory Authority, and its own funds shall not be less than 200 million yuan. In China, the establishment of an insurance company needs the approval of the competent department of the State Council, and the minimum registered capital of an insurance company is 200 million yuan.
If the above conditions are compared with other non-financial companies, the conditions for the establishment of other companies are much lower. For example, to set up a limited liability company in China, only two or more shareholders but less than 50 shareholders need to participate, and the minimum registered capital is 6,543,800 yuan (consulting and service industry), 300,000 yuan (commercial retail industry) and 500,000 yuan (production and operation industry) respectively. There is no requirement to exceed 65.438 billion yuan, but the minimum amount of financial institutions is also 50 million yuan or 65.438 billion yuan, which shows that the access conditions of the two types of companies are very different.
China's market access also has special provisions for foreign-funded financial institutions: the establishment of foreign-funded banks and joint-venture banks in China requires the approval of the People's Bank of China, and its minimum registered capital is 300 million yuan in a freely convertible currency. The minimum registered capital of a foreign-funded financial company or a joint venture financial company is 200 million yuan equivalent to a freely convertible currency; The establishment of branches in China by foreign banks must be approved by the People's Bank of China. The total assets of the foreign head office at the end of 65,438+0 before the application is filed shall not be less than USD 20 billion. At the same time, the equivalent convertible currency of not less than RMB 6,543.8 billion shall be allocated as the working capital of domestic branches for free.
In addition to the above registered capital requirements, the access review also includes the review of the applicant's property right structure, business plan, business system, internal organizational structure, qualifications of directors and senior managers, financial status and business prospect forecast, as well as the review of the applicant's affiliated companies and business merger. After the approval of the establishment of a financial institution, it is necessary to review the business scope, equity transfer, major investments and acquisitions of the financial institution.
Not only does China's financial authorities strictly examine the access qualification, but the Basel Association, an international banking regulator established by the Organization for Economic Cooperation and Development (OECD), also puts forward similar examination requirements in its core principles (65438+September 0997).
2. Business scope of financial institutions.
The scope of business allowed by financial institutions is also an important issue that needs to be stipulated by law. If the prescribed business scope is larger, the financial institutions will have greater opportunities to make profits and greater risks. On the contrary, the narrower the scope of financial business, the smaller the chances of financial institutions making profits and the corresponding reduction of risks.
In the field of international finance, there have always been two modes of "separate operation" and "mixed operation". Most financial institutions in continental European countries adopt mixed operation mode. 1933 after the promulgation of the glass Diegel act, the United States adopted a separate business model. According to the provisions of China's commercial banking law and securities law, China adopts the mode of separate operation.
From 65438 to 0986, Britain began to reform the financial system, merging financial regulatory agencies into one institution, and the business of financial institutions could be mixed.
From 65438 to 0996, Japan followed the example of Britain and put forward the Japanese version of financial system reform, including mixed operation reform. Japan's financial reform law was successively implemented on June 65438+10/October 65438 +0, 2000.
1999165438+10 In October, US President Bill Clinton signed the Financial Services Modernization Act, abolishing the Glass-Diegel Act, which had been implemented for 66 years. The new bill gives up the restriction of separate operation and allows the financial industry to operate in a mixed way.
At present, China is still a country with separate financial operations. For example, the business scope of commercial banks in China is still limited to traditional business, and they are not allowed to engage in securities investment and trust business. China's business scope is very strict: "Commercial banks are not allowed to engage in trust investment and stock business in People's Republic of China (PRC) (China), and they are not allowed to invest in non-self-use real estate. Commercial banks are not allowed to invest in non-bank financial institutions and enterprises in People's Republic of China (PRC) ".
Similarly, the business scope of securities companies is also formulated according to separate operations. China's securities companies are divided into comprehensive securities companies and brokerage securities companies. The former has a wide business scope, and can operate securities brokerage business, securities self-operated business and securities underwriting business. Brokerage securities companies are only allowed to specialize in securities brokerage business, and may not engage in self-operated business. In order to prevent other funds from flowing into the stock market, the law also prohibits "bank funds from illegally flowing into the stock market". At the same time, the law also stipulates that "state-owned enterprises and enterprises controlled by state-owned assets shall not speculate on listed stocks".
At present, the securities regulatory agencies in the State Council have explored the diversification of capital channels in the securities market and adopted a loose policy. At present, the government allows insurance funds to enter the stock market indirectly through securities investment funds, and also allows bank funds to provide financing to securities companies through stock mortgage. It also allows funds including state-owned enterprises and state-controlled enterprises to indirectly invest in securities through investment funds.
"Separate operation" and "mixed operation" reflect the different stages of the development of the financial industry, and also reflect the different philosophies of governments in dealing with financial risks: the philosophy of separate operation is to avoid risks, while the philosophy of mixed operation is to manage risks. How to deal with risks depends not only on the government, but also on the self-discipline mechanism of financial institutions, the supervision experience of financial institution supervisors and the rationality and maturity of financial market investors. Separate operation requires less self-discipline mechanism of financial institutions, experience of supervisors and rationality of investors. The latter seems more demanding.
Whether China's financial industry can engage in "mixed operation" in the future depends on whether the conditions are met. When conditions are ripe, it is not too late to propose reforms.
3. Self-discipline of financial institutions
Most financial assets are obtained in the form of liabilities, and financial assets belong to "other people's money" in the sense of creditor's rights; The risk of this industry is very high and it is a systemic risk. After a financial institution has a problem, it is easy to cause a chain reaction, leading to a crisis in the entire financial system. Therefore, the self-discipline mechanism of financial institutions is very necessary.
The self-discipline mechanism is manifested in three levels: the first is the self-discipline mechanism within financial institutions; The second is the self-discipline mechanism between financial peers; The third is the supervision mechanism of customers to financial institutions in the financial market.
China's commercial banks "shall, in accordance with the provisions of the People's Bank of China, formulate their own business rules and establish and improve their business management, cash management and security systems". At the same time, "commercial banks should establish and improve the audit and inspection system for deposits, loans, settlement and bad debts. Commercial banks should conduct regular audits, inspections and supervision of their branches. "
The securities industry in China has established a trade association, whose duties include: assisting the securities regulatory body to educate and organize its members to implement securities laws and administrative regulations; Formulate the rules that members should abide by; To supervise and inspect the behaviors of members, and to give disciplinary sanctions to those who violate laws, administrative regulations or the articles of association.
China Commercial Bank Industry Association was established with the approval of relevant departments in the State Council. Trade associations of securities companies and insurance companies have also been established according to law.
On the basis of law, trade associations of financial institutions have formulated stricter codes of conduct to supervise the daily business activities of operators in this industry, so as to maintain fair competition and market order in the industry market.
4. Protection of depositors and public investors.
In the financial transaction relationship regulated by financial law, the law pays more attention to protecting the interests of depositors or investors. This is the difference between financial law and general contract law. Financial institutions prefer to operate with "other people's money". If the operation fails and depositors or fund investors do not participate in the operation, it is obviously too heavy for depositors and fund investors to bear the responsibility again. Therefore, the Financial Law provides greater protection for depositors and fund investors. Specific performance in:
(1) Commercial banks have special chapters to protect depositors. The main contents of protection are: first, follow the principles of voluntary deposit, freedom of withdrawal, interest-bearing deposit and confidentiality for depositors; Second, refusing to inquire, freeze or deduct personal savings deposits outside the legal authorization; Third, refuse to inquire, freeze or deduct company deposits unless authorized by laws and regulations; Fourth, ensure the payment of deposit principal and interest, and do not delay or refuse to pay deposit principal and interest; Fifth, in order to protect the interests of depositors, commercial banks should also deposit deposit reserve funds with the People's Bank of China, leaving sufficient reserve funds; Sixth, determine the deposit interest rate according to the upper and lower interest rates stipulated by the People's Bank of China, and make an announcement.
(2) The securities law also protects the interests of investors. The main contents are divided into two categories, one is the full disclosure of information required for securities issuance, the approval of government departments and the continuous disclosure after issuance. The second is to prohibit trading behavior and protect fair trading in the securities market. For example, insider trading, joint or continuous trading or manipulation of securities trading prices are prohibited; It is forbidden to collude with others to trade securities with each other at the time, price and manner agreed in advance, or to buy and sell securities that are not held by each other, thus affecting the price or volume of securities trading; Self-buying and self-selling with oneself as the trading object without transferring ownership affects the trading price or volume of securities. State functionaries and news media practitioners are prohibited from fabricating and disseminating false information that seriously affects securities trading; Prohibit employees of securities trading and intermediary institutions from making false statements or misleading information in securities trading; Securities companies and their employees are prohibited from engaging in all kinds of acts of cheating customers' interests as recognized by law. (2) The main contents of financial transaction law
The development of financial market is mainly reflected in the development of financial transactions. Formally, financial transaction relationship belongs to a kind of contractual relationship. Because this kind of contract involves financial transactions, the main contents of financial law to adjust the financial transaction relationship can be summarized as four aspects:
1, macro-control of financial market
Financial transaction contract, whether it is a loan contract or a securities transaction contract, is the relationship of rights and obligations between the parties from the perspective of contract law. However, from the perspective of financial law, a financial transaction contract is not only a contract between two parties, but also a contract subject to macro-control by the government.
We can take the popular "personal housing guarantee loan" (hereinafter referred to as "personal loan") as an example to illustrate the government's macro-control situation. Starting from 1998, China's commercial banks began to hold "individual housing guarantee loans". By the end of 2000, the housing loans for urban residents issued by national commercial banks were 399,654.38 billion yuan, accounting for 40% of the new loans in that year.
On the surface, "personal loan" is the loan contract relationship between the borrower and the bank. However, this lending relationship is subject to the macro-control of the government from its emergence, development to the final end. This provision is stipulated in the Financial Law and related laws and regulations.
The macro-control of "personal loan" began at 1997. First of all, the government has changed its concept, and the housing of urban residents has changed from non-commercialization to commercialization. Then, the financial authorities of the government approved commercial banks to carry out "personal loan" business pilot in individual cities. Subsequently, the loan business was promoted nationwide, and the entire real estate market and financial loan market began to adjust and improve. More than 50 million square meters of vacant real estate in cities across the country and hundreds of billions of bank loan funds occupied by real estate have re-flowed. It also indirectly promoted the development of more than 40 related industries, solved the re-employment of a number of laid-off workers in cities, and provided new employment opportunities for some rural surplus laborers. From the example of "personal loan", we can see that the government's macro-control has a great influence on the financial industry and other financial-related industries.
2. Maintain financial market order.
Due to the shortage of funds in China, the financial market is banned from time to time from the scope permitted by the financial legal system. For example, in the banking field, funds are "extracorporeal circulation", "random fund-raising", "local protectionism of funds" and "difficulty in mortgage execution", "violent robbery of bank cash" and "injury to bank staff and security personnel". In the field of foreign exchange management, there is a "foreign exchange black market"; In the securities market, "illegal establishment of securities trading places for private transactions" and "insider trading in the securities market" and so on; "Insurance fraud" in the insurance market. Therefore, it is necessary to strengthen the construction of financial legal system and reduce and prevent the above-mentioned illegal crimes in the financial field. To this end: first, in financial legislation, we must consider solving the crime problem in this field; Second, in all kinds of transactions in the financial market, we should design standardized procedures in advance, adopt standardized procedures and system construction, and assist technical measures to prevent violations and crimes; The third is to educate financial practitioners, especially senior managers, and enhance the concept of financial legal system and self-discipline of financial professional ethics.
3. Establish a financial credit mechanism.
The socialist market economy should be based on credit, which depends on transaction records to accumulate and evaluate. As early as 100 years ago in American and European financial markets, personal records in financial payment and settlement were used as reference factors for credit records and evaluation by industry management systems. In the process of implementing socialist market economy in China, it is very important to establish a perfect financial credit system. This kind of credit relationship needs financial law to establish and maintain.
4. Standardize the opening of China's financial market.
Among the package framework agreements of the World Trade Organization (WTO), there is the Package Agreement on Trade in Services (GATS). The framework of service trade agreement includes Financial Service Trade Agreement (FSA). The agreement was signed on 1997 12 13 and came into effect on 1999 1. At present, 102 WTO members have made commitments to open financial markets.
After China's entry into WTO, it is also faced with the question of whether to accept the Agreement on Trade in Financial Services and the time to open the domestic financial services market. China's financial and legal circles should step up research on relevant legal documents, compare the development of China's financial industry, and make legislative preparations in advance.
We are also facing another challenge of the financial revolution, that is, financial electronization and informatization. The electronization and informatization of finance will have another impact on the traditional financial industry in China. Internationally, the electronization and informatization of the financial industry are changing the external form and internal content of financial institutions. The number of bank outlets is decreasing, replaced by automatic teller machines (ATMs) or even online banking systems installed on laptops.
The online operation of securities trading makes the stock exchange hall a ceremony place for listing new shares, and the actual trading can completely adopt the "no place" operation. "Move large households to their homes" and entrust the trading of securities by telephone, basically realizing the "paperless" and "no place" of stock trading. The application of this electronic and information technology in the financial market is transforming financial transactions into financial information data processing. Future financial institutions will evolve into financial data information processing and service companies.
This change will inevitably lead to new legal problems and bring problems to the existing financial law in China. Due to the accumulated experience in the legislation of China's financial law, it is mainly formed on the basis of "paper" and "field" financial transactions and supervision. Financial electronization and informatization have yet to be practiced, and it is not clear what problems it will bring to financial legislation. However, researchers in the field of financial law should quickly carry out research and prepare new legislative designs from now on.