Judging from the actual situation of China's banking supervision in recent years, the unfair related party transactions of commercial banks have brought huge credit risks and caused a large number of credit assets losses, which is one of the important reasons for the formation of non-performing assets of commercial banks and one of the main reasons for the closure of a few commercial banks and credit cooperatives. Its performance mainly has the following forms:
First, the shareholders of commercial banks use their control or influence on commercial banks to obtain a large number of related loans from commercial banks, seeking the interests of individuals or small groups and harming the interests of depositors. Example: 1995 When the original bank was established, 25 new shareholders contributed10610000000 yuan, and within a few days, shareholders borrowed 807 million yuan from the bank with their equity as pledge, accounting for 76.06% of the shareholders' contribution. Moreover, the purpose of the shareholder loan is not clear, and there is neither a project feasibility report nor a bank evaluation report on the project. In fact, shareholders have fled capital in disguise. For another example, the controlling shareholder of a city commercial bank took 980 million yuan for its affiliated enterprises by controlling the illegal bill discount of the bank, accounting for 78% of the bank's net capital, which caused huge credit risk and seriously affected the bank's safe and stable operation.
Second, directors and senior managers of commercial banks take advantage of their positions to conduct related transactions with related parties of commercial banks to seek personal interests. For example, in the mid-1990s, the former director of a credit cooperative used his authority to appoint his close relatives as directors of two urban credit cooperatives, and one person signed a loan of more than 400 million yuan from three credit cooperatives under his control, all of which were lent to his own enterprise, resulting in failure to repay the loan on time, and the three credit cooperatives were insolvent and closed down.
With the reform and development of China's banking industry, more social capital will invest in and even control commercial banks. Although the diversification of bank equity is conducive to improving the corporate governance structure of banks, and most shareholders have good motives to invest in banks, there are also a few shareholders who maliciously hold banks for the benefit of individuals or small groups and regard banks as a tool to circle money, which seriously affects the safe and stable operation of banks. It is an important issue of bank supervision to guard against the risks brought by shareholders buying bank shares in order to obtain illegitimate interests.
At present, China's laws and regulations regulating related party transactions of commercial banks are not perfect. In China's current laws, administrative regulations and departmental rules, some normative provisions have been made on related transactions of commercial banks. Articles 39 and 40 of the Commercial Bank Law have relatively principled provisions on the loan ratio of the same borrower and the conditions for granting loans to related parties. The General Rules for Loans and the Guidelines for Corporate Governance of Joint-stock Commercial Banks also make some restrictive provisions on shareholder loans. Although these laws and regulations regulate some related transactions of commercial banks, they are all relatively principled and do not strictly define related parties and related transactions of commercial banks. They do not make specific provisions on the principles that commercial banks should abide by, the procedures for identifying related parties, the approval procedures for related transactions, the behaviors that should be controlled or prohibited in related transactions, the information disclosure of related transactions, the supervision and management of related transactions, and the legal liabilities, so they are not easy to operate in practical work. In order to improve the prudent operation rules of commercial banks, it is necessary for CBRC to formulate a relatively perfect and operable administrative regulation to regulate related party transactions of commercial banks according to the existing laws and administrative regulations, and improve the identification, measurement, monitoring and control of related party transactions risks from the system design, so as to strengthen the supervision and management of related party transactions of commercial banks and promote the safe and stable operation of commercial banks. The Measures stipulate that related party transactions of commercial banks shall conform to the principles of good faith and fairness, and be conducted in accordance with commercial principles, and the conditions shall not be superior to similar transactions with non-related parties. The CBRC shall supervise and manage the related transactions of commercial banks according to law.
The Measures stipulate that related parties of commercial banks include related natural persons, legal persons or other organizations, and define its connotation. The related party transactions regulated in these Measures refer to the transfer of resources or obligations between commercial banks and related parties, including credit granting, asset transfer, service provision and other related party transactions stipulated by the CBRC. The Measures stipulate that commercial banks should formulate related party transaction management systems and stipulate the approval procedures for related party transactions. The Measures prohibit or restrict some related party transactions of commercial banks, and stipulate the proportion of credit balance between commercial banks and related parties to their net capital.
The Measures clarify the legal responsibilities of related party transactions of commercial banks. The CBRC can restrict the rights of shareholders who force commercial banks to conduct related party transactions in violation of regulations by exerting influence; For the controlling shareholder, the CBRC may order it to transfer its equity. At the same time, it is stipulated that the CBRC has the right to order commercial banks to adjust directors and senior managers who violate related party transactions. In violation of the provisions of these measures, the CBRC shall order commercial banks to make corrections and impose a fine. The CBRC shall, depending on the seriousness of the case, order the commercial bank to give disciplinary action to the directors, senior managers and other staff who are directly responsible, cancel their qualifications for a certain period of time or prohibit them from engaging in banking work for a certain period of time, and may also impose a fine.