The Study About Legal System On Insolvency Of Commercial Bank In China

With further development of market economy in China,the competition among enterprises reveals normative and intense day by day,and insolvency becomes the most common way that the enterprise withdraw from the market with the failure in the competition.The Law of the People's Republic of China on Enterprise Bankruptcy provides a complete set of procedure standards and operation specifications for the enterprise insolvency.As a kind of legal person, the commercial bank which is surely adjust by the Law of the People's Republic of China on Enterprise Bankruptcy shall apply to insolvency reorganization or bankruptcy liquidation when having the reason of insolvency.However,commercial banks have incomparable particularity compared with common enterprises. Commercial banks,whose business object is money,take the fuction of credit manufacture and credit intermediary,and it makes commercial banks'management situation not only about the survival of their own,but also having a significant impact on the financial order of the country and the public interest of the society. Special legislation to financial institutions including commercial banks has been widely accepted by academic,and also been established in many countries.In China,due to a lack of corresponding special legislation,when commercial banks fail in the competition and face insolvency,the existing insolvency legal system cannot properly eliminate strong external negative effect produced by bank insolvency.In previous practice,for the disposal of the bank crisis,the government usually use the strong administrative sense of approach,pay for enterprises'behavior relying on national credit and public finance,and assume too much relief function.These are reasons of that a real commercial banks exit mechanism has not been formed. Therefore, enhancing the expansion study of the enterprise insolvency law,and constructing impeccable legal system of commercial banks insolvency becomes an important topic in theoretic discussions.The mainbody of the text consists of five parts.Chapter 1 refers to the particularity of the legal system of commercial banks insolvency,which is the starting point and theoretical basis of this article.Commercial banks live in the heart of the financial system in a country,which not only have the nature of private interest in commercial law,but also assume a considerabledegree of public functions.Commercial banks are capable of insolvency like other enterprises.From the management pattern of commercial banks which has a characteristic of high rate of debt and many long-standing abuse of the existing bank sector in China,commercial banks face more complex business risks.Due to the special position and nature of commercial banks,while promoting of metabolism of the financial system,bank failures also have many negative effects,which include bringing a run on the bank easily,making an awful influence to the whole banking order,and shaking the basis of national credit.In order to control and reduce these negative effects effectively,the legislature should arrange and design a special legal system for commercial banks insolvency.Part 2 sorts out the legal system of commercial banks insolvency in China to the list,and analyzes sorts of deficiencies in the legislation.The legal norms referring to commercial banks insolvency are scattered at different levels of laws,regulations and rules,besides,the articles are simple,rough,non-operational, and non-existing to a certain extent.Specifically,the flaw of the legislation of commercial banks insolvency lies on the lack of systematic legal framework,the lack of provisions of insolvency prevention system,insolvency start programs,insolvency relief system,and the lack of particularity in insolvency reorganization or bankruptcy liquidation,in short,the existing legislation does not provide a set of standardized legal system.Part 3 is the study of some problems that in main developed countries for commercial bank insolvency legal system. From the developing trend of the world, The vigorous development of the financial industry and increasing competition makes commercial banks insolvency become an inevitable economic phenomenon, many countries base on practice, formulat for their own national characteristics of rule of law, take prudent supervision and disposal for commercial bank insolvency. Author selected the US, Britain and Japan as research samples, these countries'legislative model and system design are distinctive,therefore,when constructing the commercial banks insolvency legal system in China,we should be targeted to absorb and refer to foreign mature theoretical achievements and rich practical experience.Part 4 construct the basic thought of commercial banks insolvency legal system for general expatiation based on research and analysis in the third part. According to the modern concept of bank insolvency prevention and special protection for depositors , we shall establish a comprehensive legal system include prevention and relief, administrative measures and afterwards judicial procedure,such as bankruptcy prevention system, bankruptcy reorganization system, bankruptcy liquidation system and deposit insurance system.About legislation technology, our country shall choose special laws legislation mode,provide special legislation for bank insolvency in law level,and adhere to the principle of executive power dominate in power distribution compared with judicial power, as far as possible to reach the harmony equilibrium state.Part 5 is construction of concrete recommendations to commercial banks insolvency legal system in China, which is the core of this paper. Firstly, to establish commercial banks insolvency prevention program, bank supervision authorities the situation according to the salvage cost and the chance of systemic crisis triggered by bank crisis,and rescues the bank which is actually needed to save,preventing the shake to the overall social economic order. Secondly, we should perfect commercial banks insolvency reorganization process and liquidation procedures,introduce regulatory standard in insolvency causes,definite the scope of bank insolvency applicants,designate the insolvency property manager timely,distribute the property of the bank reasonably, investigate the related responsibility of bank insolvency strictly.Finally, establish the commercial banks deposit insurance system timely, the government and the insurant banks establish commercial banks deposit insurance fund jointly to protect the legitimate interest of the depositors in at the highest pay limitation, and spread the risk of commercial bank insolvency effectively.