| Capital is the blood of an enterprise. The expansion of an enterprise needs massive of funds. Therefore, during the process of seeking development, financing definitely is a necessary and unavoidable procedure. Among various financing channels, inter-enterprises loan provides adequate funding for the development of the enterprise.In particular, in an environment where market economy is gradually developing and the level for securities market is too high, financing outside is more and more difficult, which provides no guarantee for massive of funds needed by development. In order to make up for the inadequacy of capital, enterprises have to raise funds by way of borrowing and lending between each other. Especially for small and medium-sized enterprises, on one part, banks are reluctant to provide loans to these enterprises which have low or uncertain credits due to the fact that a complete bank credit system is not well established in China. On the other part, when these small and medium-sized enterprises cannot borrow money for self-development from banks, normally they will borrow money from each other to maintain their capital chains.In the early stage of economic development, such unregulated inter-enterprises loan brought negative influence to China’s economy due to the absence of national regulation, which also continuously damaged the national financial regulatory system. Therefore, Chinese law has not deregulated this activity although with the development of economy and the expansion of the enterprise, inter-enterprises loan has become one of the most significant financing instruments.However, the vice president of the Supreme Court, Mr Xi Xiaoming gave a speech on inter-enterprises loan, which changed the negative attitude to this activity. Instead, according to the president, inter-enterprises loan can be recognized conditionally. That brings a heated discussion on this issue again. In general, academia and practical circle have agreed to deregulate inter-enterprises loan with certain limitations. Otherwise, blind and unordered inter-enterprises loan will definitely damage the national financial system. Here comes the question that where is red line of regulation on this issue. It also raises the topic of this article, namely, the illegal management of deposit an loan business in banks. Because in order to study in which circumstances this lending behavior may cross the red line of national financial regulation, the object which may be influenced or infringed by this kind of activity shall be studied. Therefore, the target of this article focuses on the illegal management of the banking business, especially deposit and loan.Accordingly, this article will analyze from the essence of commercial bank and the operation mode and function of it. That may lead to the necessity of regulating the illegal management behaviors. After that, this article will focus on the issue of recognition on this activity, which is conducted from three parts. The first is the recognition of "deposit", the second is the recognition of "loan", and the third one is the recognition of "by way of business". Due to the shortage of relevant materials in China, a comparative method shall be adopted to complete the study of this part. In order to have a more direct and comprehensive understanding about this illegal management behavior, the author mainly refers to relevant regulations in British and Germany legal systems, combining analysis of classical cases in China and foreign countries.In conclusion, this article comes up with a point that the recognition of "by way of business" is meaningful to the judgment of whether the behavioral subject conducts deposit and loan business illegally. As the core point of this article, it is also used to provide a method to study on how to set up the regulating line of enterprises’ borrowing. The details of each part are as followed:In Part One, the necessity of regulating on conducting deposit and loan business illegally is addressed from practical and theoretical reasons, which is also the meaning of writing this article. The practical reason is the deregulation of inter-enterprises loan, which also entails the writing background of this article. The theoretical reason is based on the discussion of the essence of the commercial bank and the operation and function of it. Though analyzing these reasons, the author puts forward two core businesses in the banking business, namely loan and deposit business, to support the following study on the regulation of banking business.The Part Two and Part Three are the key parts of this article, mainly focusing on the recognition of illegal management of the banking business. In Part Two, the recognition of deposit and loan business is addressed out. Comparing Chinese Laws with relevant rules in British Law and Germany Law, the essence of “deposit” and “loan” can be better understood. For example, in the recognition of “deposit”, issues such as preservation, interest payment, returning and social pubic are all discriminated carefully.Part Three mainly discussed the recognition of “by way of business”. Referring to the financial regulation legislation in England and German, the author is in a view that whether the behavioral subject satisfies the test of “by way of business” is the key to judge whether he violates the regulations. But what is “by way of business”, the answer cannot be found in Chinese legal system. Therefore, in this article, the author refers to rules in FSMA2000, which set up the principles “by way of business” in regulated activities and KWG in German, which regulates “Gewerbe”. On the basis of analyzing these regulations and combining with relevant cases, this article gives detailed explanation.Generally speaking, in British Law, the rule to judge “by way of business” is stipulated in FSMA2000: Anyone will not be regarded as accepting deposits by way of business if(1) hold himself out as accepting deposits on a day to day basis; and(2) any deposits he accepts are accepted only on particular occasions. As long as one condition of these two cannot be satisfied, the behavior shall be regulated. In a word, in British legal system, what is "business" is a question which includes various factors and requires to be answered in particular situation. FSMA2000 and its amendment provides certain reference to answer the question of how to define "business". Besides, judges has summarized some common characteristics of "business" in specific cases. Through the analysis in this article, the judgment of "business" can be concluded as followed: if the person conducts financial activities such as "deposit" for profit in a long run, the amount of money and personnel involved is huge and the person holds himself out as "business" or "commercial feature", then the behavior can be recognized as "by way of business" and shall be regulated by law.In German, regulation is based on "Gewerbe", which means "operation" or "do business" in English. In this article, the author summarizes the features of "Gewerbe", which is similar to "by way of business" in British Law. The reason to emphasize the importance of "Gewerbe" in defining "regulated activities" is that "in the modern marketing economy where market mechanism plays a role to allocate resource, the liquidity of business is an important method to complete this task." If a subject without business qualification undertakes some activities which requires to be conducted by certain qualifying subjects by way of business, then the social resources allocation must be influenced. In this circumstances, the fundamental role of market in resource allocation will be damaged. Therefore, in order to prevent waste of resource because of the disorder of resource allocation, the activities conducted by the unqualified subjects shall be regulated. In this article, the author concludes three features of "Gewerbe" : if the actor conducts business for profits continuously and hold himself out as doing this kind of business, then he may satisfy the requirements of "by way of business".In the end of this part, the author finds that the regulations of Britain and German have similarities. Both "by way of business" in British Law and "Gewerbe" in Germany Law all set regulatory line from the perspective of profits, regularity and occupation. Therefore, this article holds the point that Chinese financial regulatory can use this recognition method for reference to judge whether an activity falls into an area of illegal management on banking deposit and loan business.Part Four focuses on practical issue of inter-enterprises loan by using the conclusion got from Part Two and Part Three. This part mainly discusses the causes of inter-enterprises loan, reasons to deregulate inter-enterprises loan and the boundary of regulation. In this article, the author believes that the "business" test not only has theoretical meaning, but also plays an important role in judging inter-enterprises loan violates the red line of regulatory. As long as an enterprise lends money to another enterprise by way of business, it constitutes illegal management on deposit and loan business. Otherwise, if an enterprise lends money to another enterprise by accident or only because of emergencies or friendly cooperation, then this kind of activity will not be forbidden by law. The theories of "by way of business" concluded from previous parts may provide more theoretical basis to help with the issues of inter-enterprises loan.In conclusion, the process of studying on illegal management of banking business is very complicated, which includes broad legal issues. In practice, the behavior of a subject has various features with the development and change of financial market. Therefore, the problem cannot be settled at once. It requires strong theories to support and different cases to analyze. Due to the lack of corresponding legislation in China and the incomplete regulatory system currently, we cannot find a straight and clear answer in Chinese legal system. In the process of studying on this issue, the author has to refer to massive rules and materials in British Law and Germany Law, hoping to find tiny clues or trips from foreign financial regulatory legislation. However, there is one thing which can be confirmed, that is, as a property right, inter-enterprises loan has its own legitimacy. It is known to all that the initial definition of legitimacy rights will absolutely cause the change of economical system and social system correspondingly. What law shall do is to define the legal and illegal boundary of inter-enterprises loan by improving the current legal system so as to eliminate unreasonable restrictions extremely and normalize the inter-enterprises loan. Aiming at control and regulate these civil financial activities such as inter-enterprises loan, this article put forward a point of "by way of business". Study the regulation of inter-enterprises loan in a view of "by way of business" is a brand new but not unfamiliar nor immature perspective. The significant effect of this rule in foreign regulatory areas can be used to provide new ideas for Chinese legislation in the same area. |
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