Research On The Legal Obstacles And Countermeasures Of The Marketization Of The Commercial Bank Debt-to-Equity Swap

In the late 1990s,the debt-to-equity swap played an important role in revitalizing bank's non-performing assets and resolving financial risks.At present,with the deepening of supply-side structural reform,the debt-to-equity swap has been restarted.Since enacting the guidance of marketization of the bank debt-to-equity swap,the marketization of the commercial bank debt-to-equity swap is in full swing and has made remarkable achievements in practice as an important means of deleveraging.The leverage ratio of state-owned enterprises and commercial bank's bad rates has been falling.But there are also some concerns and problems in the implementation process,among them,the lack of the rule of law is the largest of the current obstacles.There are few legal rules relating to debt-to-equity swaps and the status is low,which can't adapt to the needs of practice and solve the problems in practice.The debt-to-equity swap is in conflict with current law and there are many difficulties in operation,such as the existing legal risks in the investment of creditor's rights,lack of special legal norms in the debt-to-equity litigation,implementation of inadequatenot in place of shareholder's rights,existence of moral hazard and so on.In view of this,in order to make a better legal system guarantee for the marketization of the commercial bank debt-to-equity swap,it is necessary to analysize the difference between two rounds of the debt-to-equity swap,and combine the experience and the insufficiency of the last round of debt-to-equity swap to better understand the "marketization" essence of this round of debt-to-equity swap.Through learning from foreign experience and historical experience to provide effective suggestion of perfecting.Therefore,It starts with two typical debt-to-equity swap cases like Beijing cement factory and YunXi group to make a multi-angle comparison to find some legal obstacles and problems of debt-to-equity swaps in the practice.First of all,the paper is by introducing the background of the debt-to-equity swap,defining its concept and characteristics,listing its operation modes and analyzing its operating mechanism,to clarify the legal relationship in the debt-to-equity swap.Secondly,the paper analyzes the basis of the marketization of the commercial bank debe-to-equity swap in our country from two aspects of rationality and feasibility.Rationality is been proved from two angles of legal basis and practical basis,feasibility is been proved from three angles of the use of technical means,the main body of law acceptable degree and the practical experience of debt-to-equity swaps,among them,it also includes the discussion on the practice on debt-to-equity swap cases.Again,the paper analysizes the problems of the marketization of the commercial bank debt-to-equity swap in our country from two aspects of conflicts of the legal system and the main difficulties in the operation process.The former part includes five aspects of the lack of the rule of law,the existing legal risks in the investment of creditor's rights,the limitation of the security law protection,undefined the scope of implementing agencies,and lack of special legal norms in the debt-to-equity swap litigation.The latter part includes four aspects of implementation of inadequate of shareholder's rights,unsmooth equity exit channels,existence of moral hazard of the bad debts and existence of pricing risks.Finally,by drawing lessons from the advanced international experience and historical experience of the last round of the debt-to-equity swap,the paper gives suggestions for the marketization of the commercial bank debt-to-equity swap in our country from three aspects of perfecting the system of principles,improving the detailed rules and improving the system of form a complete set of.In particular,the principles to be followed include the principle of equality and voluntariness and the principle of fairness.Specific refinement rules perfect from five aspects of clarifying the scope and conditions of the creditor's rights,quantifying the selection criteria for the transfer enterprises,clearly defining the scope of implementing agencies,limiting the proportion of debt-to-equity swaps,and the approval of the debt-for-equity swap scheme follows the principle of unanimity.The supporting mechanism should be improved from four aspects of the valuation and bargaining mechanism of the transfer of creditor's rights,enterprise management and management mechanism,equity withdrawal mechanism and moral hazard prevention mechanism.