Research On The Distinction And Amalgamation Of Regulation Policy And Competition Law In The Banking Industry

In the field of economic law,the relation between the government and market is an important research area.Regulation policy and competition law are important means of government intervention in the economy.According to the traditional view,regulation and competition are an alternative to each other.However,with the development of technology,the relation is more complex.The banking industry plays a vital role in the whole national economy.For a long time,many countries monitor the banking industry by the regulation policy.The vacancy of the competition law is a prominent problem.Since 2008,the financial crisis has deepened people's understanding of financial regulation and innovation,but the importance of financial competition still needs to be improved.Therefore,it has great theoretical and practical significance to study the application of banking regulation and of competition law.Regulation and competition were initially the concept of economics,and then introduced in the scope of legal research.From the perspective of legal research,we can define the regulation policy from the aspects of regulation subject,regulation object,regulation behavior,regulatory purpose and legal responsibility.Legal competition focuses on the analysis of the social attributes and legal consequences of competitive behavior.Generally speaking,the competition law is the legal system regulating the market competition order,which can be broad or narrow.According to the intervention theory in economic law,regulation policy and competition law can be clearly defined from the aspects of the objectives,tasks,tools,methods,time and frequency of the intervention,the knowledge and information needed for intervention,and the independence of the intervention institutions.At the same time,the complementarities and integration of regulation policy and competition law are required by correcting market failure and regulatory failure,realizing procedural justice and substantive justice,as well as the intervention of the rule of law.Competitive regulation policy and regulative development of competition policy are the concrete manifestation of the convergence of the two.The complex relation between the two can be explained and demonstrated from the changes of economic law,ambiguity andconstitutional principle of economic neutrality.In general,regulation policy is logically intersected with competition law.In the banking industry,the application of regulation policy and competition law has its legitimacy.The two kinds of intervention tools have different development patterns in different countries and different periods.The choice of banking intervention tools has profound political,economic and legal motivations.The government as “reasonable person” and the role of government in different periods need to be considered as political factors.The stage of development of a country's economy and banking industry,the value choice of financial security and efficiency,the deepening understanding of financial restraint and development,the priority of competition and industrial policy,the development of economics and the role of economist need to be considered as economic factors.The legal factors to be considered are as follows: the traditions of state intervention in economic law and the generation of economic law,the position of competition law in economic law,the limitation of competition law itself,the cost-benefit analysis of regulation and competition,the different development of regulation and competition law in legislation and law enforcement,the formation of the regulatory state,as well as the role of different national courts and other judicial factors.The above theoretical analysis can be confirmed by the historical investigation of banking regulation and competition in the United States.The US banking regulatory policy and competition law presents different relation graphs in less regulation of the free competition period,the security priority to strengthen the banking regulation period,the efficiency of the priority to relax the banking regulatory period and the safety and efficiency of the bank re-regulation period,which fully shows the diachronic characteristics of the evolution of the relation.The bank bailout practice since the financial crisis in 2008 has provided a new blueprint for the analysis of the relation between regulation and competition.The United States actively rescued "too big to fail" banks and introduced Dodd-Frank Wall Street Reform and Consumer Protection Act,and the bank anti-monopoly target put more emphasis on financial stability and protection of financial consumer interests.The EU responded to the sovereign debt crisis through state aid,the establishment of a European stabilization mechanism and continued enforcement of competition law.OECD,the World Bank and IMF have also published their basicviews on bank bailouts and explored possible paths for future regulation of banking regulation and competition.As to our country,the development of the banking industry has long been “less competition and more monopoly”.The regulation and competition of the banking industry have distinct "local characteristics",which are mainly manifested in the path dependence and paternalism,and the ambiguity and conflict of law enforcement provisions of the banking competition.Considering the history and reality of China's banking regulation and competition,and fully learn from the advanced experience of other countries and regions,it suggests that the development of China's banking regulation policy should take full account of systemic risks and competitive factors,cost-benefit analysis,and also fulfills the requirement of “procedural justice”.Bank antitrust should insist on the general application of anti-monopoly law and the complementary application of regulation policy,and fully consider the basic position and stage characteristics of competition law,strengthen competition advocacy and competitive culture construction,and further improve the division of labor in competition and regulatory body in order to achieve better regulatory performance.