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Bresearch On The Issue Of Rule Of Law In Rural Financial Regulation

Posted on:2015-04-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:P L ZuoFull Text:PDF
GTID:1486304322466194Subject:Science of Law
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Abstract:Based on the premise that right and power are the constraint condition of financial development, the Chinese rural financial issue is exactly that the peasants'financial rights are too weak while the government's financial power is too strong. Financial regulation is a new-type state economic regulation function and power. The rural financial regulation ruled by law is an important aspect for guaranteeing the peasants'financial rights and restricting the government's financial power. Former research in law circle on the issue has several shortages as attaching importance to duty but overlooking right, attaching importance to supervision but overlooking regulation, attaching importance to legal institutions but overlooking rule of law, and attaching importance to individual logic but overlooking integrative thinking on the research methods. This dissertation studies the allocation of right and power in Chinese rural financial relationship by the methods of multi-discipline and systematism from the perspective of rule of law in rural financial regulation, which has its theoretical and practical significance.The rural finance makes a general reference to deposits and loans, insurance, bonds, trusts and all other economic activities relevant to currency circulation and credit in rural area. Based on the issue that the rural finance in China is mainly agricultural finance, finance in poor rural area and peasant household finance, the rural finance in this dissertation is more of the concept relevant to agriculture, poor rural area and peasant household finance. Financial regulation, based on the spontaneous adjustment of finance market, is a new regulation force and mechanism for the state to regulate, supplement and guide the finance market. Different from the financial supervision which focuses on supervision and management of micro business behavior of finance market, financial regulation is a macro economic regulation, which includes the state regulating the finance market, participating in direct investment and operation of financial field, and macro-controlling the finance. Financial law system refers to financial legal institutions, which focuses on legal expression of financial norms. The primary objective of the construction of financial law system is to lay down complete financial law for financial relationship being legislated. But the financial rule of law emphasizes the pursuit of inner value of financial law. The objective of the construction of financial rule of law is to lay down financial law which conforms to justice, freedom and equality principles and demonstrates the masses'financial rights and restricts the government's financial power, and which could be implemented commendably.The general legitimate basis of the rule of law in rural financial regulation lies in the peasants'basic financial right is of human rights attribute. Hence, the country bears responsibility for the peasants'basic financial interests being protected. The failure of rural financial market regulation objectively requires the state to regulate rural finance, while the independence and limitation of rural financial regulation provides and restricts the interaction space of that power. For the legitimate exercise of rural financial regulation by the rule of law, the fairness of rural financial regulation and balance of legal interests are ought to be insisted. The rule of law in rural financial regulation includes substantive rule of law and procedural rule of law of rural financial regulation.Reviewing the legislative evolution of rural financial regulation since the foundation of new China, we can find two concerns of the essence and form of legislation in Chinese rural financial regulation. Essentially, rule of law in rural financial regulation has the following problems:spirit of financial fairness is absent; relevant systems lack the spiritual core for protecting the peasants'financial rights; the distinction of rural financial regulation and supervision blurs; governmental executive power over-controls the rural finance etc. Formally, the rural financial regulation norms are not independent; legal norms of the rural financial regulation are deficient; the norms of rural non-banking financial regulation are deficient; the executive mechanism of the norms of rural financial regulation is deficient etc. The problems of two aspects exist interlacedly, with the essential problems the most prominent.The formation mechanism of the issue of rule of law in the rural financial regulation of China is extremely complicated. The complexity is embodied in the following aspects:the country enforces unfair rural financial controlling policy for the need to serve different forms of city development strategy which are given priority; systematicness of urban and rural binary system leads to accumulation of rural financial repression and its long-standing; the absence of peasants'financial legislative participation right is not only unfavorable for allocation of peasants'financial rights and interests, but also difficult to prevent the administrative distribution from becoming the primary method of the peasants'financial interests regulation; the expanding of governmental financial public right under the preference of rural financial policy standards leads to the executive power over-controlling the rural finance; the conflict between the formal and informal rules in rural financial regulation leads to poor implementation of rules of relevant rural financial regulation. Those causes interact on each other, which leads to the issue of rule of law in Chinese rural finance jointly.The advance of rule of law in Chinese rural financial regulation needs reconstruction of concept firstly. Legislation of rural financial regulation in China should insist on fair concept, viz. persisting in fair value prior to efficiency and safety and other values. Hence, the rule of law in rural financial regulation is supposed to not only endow the peasants'fair opportunity of obtaining market financial service, but also guarantee poor peasants'basic financial service as the role of undertaker of the ultimate duty of the country. Private property of rural financial relationship under market economy and reality of development lag of rural financial market in China demands that the rural financial market cultivates legislation in China so as to establish micro mechanism beneficial to fair allocation of financial resources. Financial regulation law is law of rights and power-controlled law as well. Hence, the rule of law in Chinese rural financial regulation not only requires the country to lay down a complete system of rural financial regulation law, but also requires the country to construct the peasants'basic financial right system and fulfill the independence and internal balance of rural financial regulation right.The ultimate goal of the rule of law in rural financial regulation in China lies in the improvement of rural financial regulation system. The system is supposed to include basic rules, fundamental rules and supporting implementation rules of Chinese rural financial regulation. The basic rules refer to those which are of cornerstone or guiding function in the system including basic law of rural finance, market rules of rural finance, regulatory rules of rural finance etc. Fundamental rules refer to those which constitute the main content, the basic rights and obligations of standard subject including general principles of rural financial regulation, fundamental rules of rural financial market regulation, fundamental rules of state investment and management in rural finance, fundamental rules of rural financial macro-control. Supporting implementation rules refer to those which help to the effective implementation of the fundamental rules and which are of the function of operability and inducement and constraint including the operation provisions of rural financial regulation, and the inducement and constraint rules in rural financial regulation etc. Because the rural financial regulation policy is deep-rooted in China, the improvement of the system of rural financial regulation in China is also a process of abandoning policy gradually to a great extent.
Keywords/Search Tags:rural finance, financial regulation, rule of law infinance
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