| Considering the economic crsis which began on the collapse of the stock market and the paralysis of bank system made great damage to the society, the U.S Congress formally passed the "Glass-Steagall Act" with absolute majority votes, in order to restrict the mixed business behaviour between bank industry and securities industry. This Act not only established the separated business structure on the basis of prohibiting the mixed business behaviour between those industries strictly, but also setted up a regulating mechanism which matched the separated business structure. The reason why the U.S Congress made such a strict regulation on the mixed business behaviour between bank industry and securities industry was on the purpose of limiting the overflow of the interior interest conflict on the process of mixed business and the threaten to the exterior financial circumstance under the assistance of the mixed business structure. Then made the financial industry develop smoothly on a expectable range, vindicated the security of the financial market, kept steady of the macro-economy. Thus, after a long time when the economic crsis ended, given the serious result which led by the interior interest conflict and the restraint of the " Glass-Steagall Act" to this situation, the U.S firmly pursued the financial business and regulation structure whose worth was security, in order to avoid the possible disadvantage consequence which arose from the interior interest conflict. Certainly, the U.S held a contravening attitude to the mixed business structure at that time.However, from 1950s to 1960s, being accompanied with the development of economy and trade globalization, the economy and trade activities between nations became frequent. At the same time, the trade manner also became complicated gradually. The characteristic of it was rapid development of fictitious transaction whose nucleus was trade of structural financial products and the obvious advantage of structural financial products trade was that it could be used to predict the future detailed situation of the market on the condition of avoiding risk, finally satisfied the pursuit to interest of the market body. But such transaction way required every industry could coordinate with each other highly, especially between bank industry and securities industry, later designed structural financial products which could satisfy multi-requirement on the basis of share, just in accordance with the financial market information and different market condition. Correspondingly, this financial innovation structure had a higher requirement to the mixed business. But, at a long period, several U.S financial corporations couldn't compete with their adversaries effectively on international financial market because of strict prohibition to the mixed business which according to the the "Glass-Steagall Act", eventually caused them fall into a disadvantage situation on the process of competition. On the purpose of reversing such disadvantage situation and avoiding the strict prohibition to the mixed business legally, the New York bankers established financial holding company and participated in the development and operation to the structural financial products with it. Later they got absolute triumph on the basis of avoiding the legal prohibition. The fact had already proved that the establishment, development and organization of financial holding company was not only fulfil the law's requirement and regulation to the separated business, separated regulation, but also able to fully transfer resource and energy of every sector in the company. Furthermore, the superiority of scale effect, scope effect and synergies could be bringing into play to the highest level. At the same time it could avoid unbalance among sectors and serious risk under universal banking structure effectively. So, on the process of long-term business, financial holding company had already proved its' unique advantage and future on the financial market step by step. According to the fact, the U.S legislator had also realized much merits of financial holding company gradually. With regard to the interior interest conflict problem which the legislator kept focus for a long time, it considered that the negative influence which arose from the interior interest conflict would be offsetted by the profits which financial holding company obtained on the business and its' promoting effect to the financial market. Thus, the U.S legislator basically held an acquiescing or even an encouraging attitude to several business which engaged in by the financial holding company for a long time since the company appeared. Finally in 1999 the U.S Congress substituted "Gramm-Leach-Blileg Act" for "Glass-Steagall Act", such legislative operation not only made financial holding company obtain the legal approval after the company developed nearly 50 years, but also caused great change on financial regulation structure. It meant the institutional regulation changed into functional regulation, then kept effective regulation to financial holding company continually.But the junior mortgage loan crsis which arose from the U.S and later spread to the whole world quickly made many financial organs in America and other nations, including financial holding company, suffered great lose. The citic group which was well-known by its' cautious operation also incurred about 4 billion dollars lose in the 3 months after the beginning of the crsis. Moreover, the credit grade of the financial conglomerate was decreased by many large credit rating institutions and the citie group was forced to adjust the interior structure under the pressure. Especially before the junior mortgage loan crsis break out, many financial regulation organs, including the U.S Federal Reserve Committee, sent warning to the risk factors which appeared on the junior mortgage loan market under different circumstances. While the investment bank which affiliated with the citic group and the financial analyst also sent warning frequently that the securities department which affiliated with the group should sell some parts of the structural bond whose major object was junior mortgage loan immediately. However, the securities department held more and more structural bond and finally suffered great lose. The reason why the group seriously damaged by the structural bond was that the interior interest conflict caused the group not to make a rational choice, then made the group suffer great lose on the fund and credit, it had no relation to the responsibility of the financial regulation organs, also had no relation to the group that whether it dealt with the financial risk effectively or not. Thus it could be said that the financial holding company had no natural immunity to the interior interest conflict. On the contrary, the company could only cover the threaten and damage which arose from the interior interest conflict just relied on a better financial market environment and the advantage of scale effect, scope effect and synergies. Correspondingly, the U.S and other nations only kept focus to the interior interest conflict which happened in the financial holding company on the single case, they didn't observe the problem from the macro and structural view. The interior interest conflict of the financial holding company mainly arose from the structural unbalance which caused by the malfunction of self-adjustment in essence and the financial innovation and the complexity or the unpredictability of the financial product made the unbalance situation more serious. Thus, to the interior interest conflict of the financial holding company which caused by the structural unbalance, should be restrained from the view of structuralism. So it will not only hold the essence of the interior interest conflict which happens in the financial holding company, but also has an important theoretical and practical significance to the Chinese financial holding companies which are on the process of growth when they must deal with the interior interest conflict effectively. Then, this thesis will discuss and hold the problem mainly from four aspects as follows:Part one discuss the necessitude of regulating the interior interest conflict which appeared in the financial holding company. This part will define the different forms and categories of the interior interest conflict in advance. Later it connect with the situation whose aim focus on regulating the interior interest conflict on the basis of defining its' characteristic. Furthermore, it will make out the series of influence which the interior interest conflict takes to the consumers, financial regulation, financial system and macro economy environment possibly. Then it is going to discuss the significance of regulating the interior interest conflict following the previous point and provide the precondition for the following expansion.Part two explore the key points and detailed contents of regulating the interior interest conflict which exists in the financial holding company. This part will analyze the further structural reason that why the interior interest conflict happens in the company by way of clearing the function and unbalanced situation of the entirety characteristic, interior transformation rule and the characteristic of self-adjustment from the structural view. Then it is going to conclude the key point s of regulating the interior interest conflict and discuss the separated business institution, firewall system, Chinese wall and other regulating methods on the basis of legal regulation according to these key points, in order to elaborate its' function ,effect and reality of regulating the interior interest conflict. Correspondingly, on consideration of the need that compares and refers the detailed institutions of regulating the interior interest conflict, part two also chooses the specific institutions from the U.S and Japan, in order that it could make a comparison between these institutions. Generally speaking, the regulation of the U.S is more comprehensive and consummative, the regulation of Japan owns more referring significance, because both Japan and China have more similarity. Thus this part mainly chooses the specific institutions of regulating the interior interest conflict from these two countries, in order to absorb the experience and lesson from them.Part three focuses on the problem which exists in the legal institution of regulating the interior interest conflict in China. First it will define the present situation of the legal institution to the interior interest conflict and analyze the specific state of the legal institution, for example, the problem of the interior interest conflict which happens on the period when the government is holding shareholder. Later it will explore the problem which exists in the legal institution of regulating the interior interest conflict further and analyze the detailed reason.Part four elaborates the specific route on how to consummate the legal institution of regulating the interior interest conflict which appears in the Chinese financial holding company. From the view of solving the basic problem on interior interest conflict, this part will consummate the institutions of regulating the interior interest conflict and provide the homologous suggests according to the realistic situation about the development of the Chinese financial holding company. After all, the legal institution of regulating the interior interest conflict which happens in Chinese financial holding company exists many flaws and weakpoints... |
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