The Reasearch To The Related Legal Matter Of Commercial Bank Bankruptcy

The financial crisis which originated in the United States and swept the international, not only caused a series of international banks on the brink of bankruptcy,but but also raised public great concern of issues of commercial banks.For the current situation at home and abroad,China's commercial banks have the possibility and necessity of bankruptcy,and commercial banks are different from general business in the business object,asset composition and the risks which encountered in business,so that commercial banks have greater risk in management.The Commercial bank crisis's infection as well as the intense negative external effect produced by the Commercial bank bankruptcy, making the national insolvency legislation on in dealing with this issue of commercial banks are often cautions,so that the bankruptcy of commercial banks not only to follow the general corporate bankruptcy Law,but also to construct its bankruptcy legal regime according to its unique position.Although china's "Bankruptcy Law" 134th expressly provides that Reorganization and liquidation of commercial banks apply the provisions of "the Enterprise Bankruptcy Law". However, due to the special nature of commercial bank itself and its bankruptcy in law--- mainly related to the start proceedings,reorganization proceedings and liquidation proceedings of the commercial banks bankruptcy that "the Enterprise Bankruptcy Law" cannot fully meet the commercial banks bankruptcy.Therefore,we need develop appropriate commercial bank bankruptcy law to meet to its special nature.Structurally speaking, this paper mainly divides into four chapters:The first chapter is the general theory of the commercial bank bankruptcy.Firstly,it elaborated "the bankruptcy" meaning as well as insolvency regimes.By comparing the current international on "bankruptcy" meanings,and proposing author own viewpoint. After having learned about the correct meaning of "the bankruptcy",the auther also introduce the bankrupt system's development from the historical angle,in order to elaborates the Commercial bank bankruptcy legal regime later.Secondly, by analyzing the possibility and the necessity of the the Commercial bank bankrupt from the practice angle,obtained in the context of financial globalization,the commercial banks bankruptcy is inevitable.Finally,by elaborating the special nature of commercial bank itself and its specificity in the law from the perspective of the value,we know that china's "Enterprise Bankruptcy law" cannot meet the needs which the Commercial bank goes bankrupt,our country must formulates the Commercial bank bankruptcy law aiming at the special nature of commercial banks (mainly in the start proceedings, reorganization proceedings and liquidation proceedings of the commercial banks bankruptcy), causing Commercial bank's bankruptcy to have legal support, and improve the operability.The second chapter mainly researched the start proceeding of the commercial bank bankruptcy. First of all, by elaborating the general standard which the Commercial bank goes bankrupt--The fluid standard and the property debt standard,we may know the drawback when these two standards utilized in the Commercial bank bankruptcy.Based on this, this article has introduced US's regulated standard and Proposed the suggestion about the standard of Commercial bank bankruptcy in china for china's status of legislation.Secondly,by the perspective of comparative law,summed up and sort out the applicant of the commercial banks bankruptcy in different countries. Mainly elaborated the petition of the debtor, the creditor as well as the regulatory authority in bankruptcy, and on this basis, put forward a sound proposal for the legislation insufficient of applicant in Commercial bank bankruptcy.The third chapter has studied the restructuring of commercial bank insolvency regime. Firstly,from the perspective of comparative law on generalizing the reorganization proceedings in foreign countries,mainly discussed two special procedures of commercial bank bankruptcy reorganization:interim management and takeover,in order to provide beneficial lessons for designing china's commercial bank bankruptcy reorganization.Secondly,when analysise china's commercial bank bankruptcy reorganization,has put forward a sound proposal of commercial bank bankruptcy reorganization from Public financial assistance and takeover.The fourth chapter has studied the Commercial bank bankruptcy liquidation proceedings. Firstly, from the perspective of comparative law on introducing and geneliazing the liquidator elected, responsibilities and supervision of the legislation in foreign developed countries.And as it bedding to perfect the liquidator elected, responsibilities and supervision of the legislation in china. Secondly, from the perspective of comparative law on introducing and geneliazing Creditor's rights declaration and confirmation of foreign commercial bank bankruptcy,and on this basia proposed that the person savings deposits were exempt from claiming in the report claims,and suggested that made a distinction between personal savings account and a unit of deposits, legal deposits with the recommendations of the illegal deposits in Confirmation of the claims; Finally, from the perspective of comparative law on introducing and geneliazing the scope and distribution of the estate of foreign commercial bank bankruptcy. In the Commercial bank bankruptcy property's scope,which mainly elaborated which tangible and intangible assets can be described as estate; In the bankrupt property assignment,which put the bankrupt property assignment principle as a premise,put forward proposal to the individual savings deposit's priority and the priority between the ordinary creditor's rights and the tax revenue.Throughout the full text of commercial bank failures for the legal issues related to innovation, the following points:Firstly,the paper attempted to research the Commercial bank bankruptcy legal regime itself,and rallied the Commercial bank integrates in the Commercial bank bankruptcy legal regime frame system,and analysised and disscued the related legal matter of commercialbank bankruptcy by horizontal comparison.Secondly,the paper take legislates and practices of bank failures in Europe and America and other developed countries as the main background,in order to research the general theory of commercial bank failures, insolvency start the program, bankruptcy reorganization and bankruptcy liquidation proceedings, etc. from various angles, a full range of in-depth study;and it carried out an active exploration and summary to china's commercial bank bankruptcy legal regime that meet china's condition from both the theory and practice.For example, by introducing the regularity standard in the bankrupt standard, urging the regulatory authority to involve promptly; The applicant in the bankruptcy which advocated that the individual savings deposit should been exempted from declarating claims; The reforming system and takeover to be perfect;Liquidation embodied in the special protection of depositors.As China's commercial banking legislation is still in an ongoing exploration stage, the legal system and its bankruptcy-related research is still in the process of continuous improvement.We hope this article will lay a solid foundation for study on the future.