On Some Special Legal Issues Of Commercial Bank Insolvency

The high-risk nature of commercial banks, the link between banks'crisis and the strong negative effects of commercial bank insolvency allow many countries to treat commercial bank insolvency carefully especially when they make the commercial bank bankrupt law. Such particularities include the inherent attributes, the forms and the contents of the commercial bank bankrupt law.The particularity of commercial bank insolvency embodies in the internal property of commercial bank bankrupt law with its unique value goal. Comparing to common enterprise bankrupt law, commercial bank bankrupt law pays more attention to the security value and order value, which common enterprise bankrupt law emphasizes on the efficiency value and fair value.Many countries make different choices of the commercial bank bankrupt law's forms. Applying common enterprise bankrupt law and applying special bank law are the most important kinds of these choices. Commercial bank insolvency in China applies common enterprise bankrupt law in principle. And then the common enterprise bankrupt law authorizes state department to make rules solving special problems in commercial bank insolvency. This model is a reasonable choice. For one thing, it maintains the existing legal framework, saving the cost of legislation. For another thing, it gives more attention on special problems in commercial bank insolvency.The reason of commercial bank insolvency is the key point in commercial bank bankrupt law. Comparing to common enterprise bankrupt law, commercial bank bankrupt law includes more technical and administrative rules about the reason of commercial bank insolvency. China should express the reason of commercial bank insolvency to"in the insolvency conditions which are formulated by the bank supervision and management institutions"for the bank supervision and management institutions playing a more important role in commercial bank insolvency.Saving procedure of the commercial bank insolvency is flexible and diverse. It includes the receivership and the reorganization. According to the choice of the bank supervision and management institutions, China should receive the coordination between the receivership and the reorganization, meeting saving procedure of the commercial bank insolvency's needs. A lot of countries'legislation treats problems of commercial bank insolvency liquidation specially, such as the ability of insolvency, the insolvency applicants, and the distribution of the estate. China should learn from advanced experiences of these countries to improve the special legal provisions of commercial bank insolvency liquidation.