塞浦路斯银行危机救助法律问题研究
发布时间：2018-10-31 09:40
【摘要】：纵观此次欧盟集团纾困塞浦路斯银行危机的过程,其中存在着许多法律上的问题值得深思。在第一轮救助协议中,政府采取征收一次性存款税的方案,不符合欧盟存款保险制度下对于储户财产利益和存款安全保护的设定；在存款税议案遭到否决后,塞浦路斯确定终局银行重组法案,其中对无保险储户强制性的“债转股”措施不符合银行与储户之间所构成的“债”的法律关系项下其二者的权利享有和义务承担；为了防止挤兑现象和资金外流的风险,塞国采取了财政紧缩和资本控制的措施,使欧元在欧盟区域内因国籍差异而改变了其“超越国界货币”之法律性质所承载的价值与功能。 欧共体作为一个特殊的超国家组织构建了其自有的独特的法治系统,为了保障该体系在成员国内切实有效的实施,通过基本条约以及欧洲法院的司法实践赋予了欧盟法直接适用和优先适用于各成员国的最高法律效力。在欧盟法基本权利原则保障层面上,塞浦路斯银行危机救助的措施不仅对该国银行储户及其国民的财产权造成了损害,对于银行重组方案中的受损储户也存在平等权的侵犯,同时剥夺了存款人合理性期待的权利。另外,塞浦路斯银行纾困事件涉及侵权,其国内银行监管机构对于本国银行风险性投资行为没有尽到相应的监管职责,欧盟泛欧金融监管体系也未实现其对成员国金融体系上审慎监管的作为义务。而且,国家政府和欧元区集团使用第三方的公权力涉入方式来进行塞国自筹资金的获取,民众受到了私有财产上的损失,社会公共利益在某个方面也遭到了忽视。 有侵害便有救济,在欧盟的司法审查制度中,欧洲法院的侵权行为损害赔偿之诉以及对欧盟机构的不作为审查,加之塞浦路斯本国国内的行政诉讼制度,能够为在本次银行纾困过程中的受损储户提供司法救济途径,但是由于对侵权事由的学理推论需求以及举证责任的困难,加之监管豁免权制度的保护,无保险储户在实践操作中很难得到切实的损失弥补。通过对塞浦路斯银行纾困事件的分析,可知在对银行进行危机预防的时候,要加强跨国银行法律监管的切实实施,以此先行地防止主权债务危机对民众利益的损害,同时在进行银行救助的过程中,也要注重对储户财产利益及其相关权利的保障与实现。
[Abstract]:Throughout the EU group's bail-out of Cyprus's banking crisis, there are many legal issues worth pondering. In the first round of the rescue agreement, the government adopted a one-off deposit tax, which is not in line with the European Union deposit insurance system for depositors property interests and deposit security protection. After the deposit tax bill was rejected, Cyprus decided on a final bank restructuring bill. The compulsory "debt-for-equity" measures for uninsured depositors do not conform to the rights and obligations of the banks and depositors under the legal relationship between them. In order to prevent the risk of runs and capital outflows, the country has adopted fiscal austerity and capital control measures to change the value and function of the legal nature of the "cross-border currency" in the European Union because of differences in nationality. The European Community, as a special supranational organization, has constructed its own unique rule of law system to ensure its effective implementation in member States. Through the basic treaties and the judicial practice of the European Court of Justice, the direct application and preferential application of EU law to member States are given the supreme legal effect. On the basis of the guarantee of fundamental rights principle of EU law, the measures of bank crisis rescue in Cyprus have not only damaged the property rights of bank depositors and their nationals, but also infringed on the equal rights of the injured depositors in the bank restructuring program. At the same time, it deprives depositors of the right to reasonably expect. In addition, the bail-out of Cyprus's banks involved infringement, and its domestic banking regulator did not perform its corresponding regulatory duties in respect of risky investments by banks in the country. The European Union's pan-European financial regulatory system has also failed to fulfil its obligations to prudential regulation in member countries' financial systems. Moreover, national governments and euro-zone groups have used third-party access to public power to obtain self-financing, resulting in the loss of private property and neglect of social and public interests in some ways. In the European Union's judicial review system, the European Court of Justice's suit for damages for infringement and the review of the omission of EU institutions, in addition to the domestic administrative litigation system in Cyprus, It can provide judicial relief for the injured depositors in the course of the bank rescue, but due to the need for theoretical reasoning on tort matters and the difficulty of proving the burden of proof, coupled with the protection of the system of regulatory immunity, It is difficult for uninsured depositors to make up for the loss in practice. Through the analysis of the rescue incident of Cypriot banks, we can see that in the course of crisis prevention for banks, we should strengthen the practical implementation of the legal supervision of transnational banks, so as to prevent the damage to the interests of the public caused by the sovereign debt crisis in the first place. At the same time, in the process of bank rescue, we should pay attention to the protection and realization of depositors' property interests and related rights.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D996
本文编号：2301702
[Abstract]:Throughout the EU group's bail-out of Cyprus's banking crisis, there are many legal issues worth pondering. In the first round of the rescue agreement, the government adopted a one-off deposit tax, which is not in line with the European Union deposit insurance system for depositors property interests and deposit security protection. After the deposit tax bill was rejected, Cyprus decided on a final bank restructuring bill. The compulsory "debt-for-equity" measures for uninsured depositors do not conform to the rights and obligations of the banks and depositors under the legal relationship between them. In order to prevent the risk of runs and capital outflows, the country has adopted fiscal austerity and capital control measures to change the value and function of the legal nature of the "cross-border currency" in the European Union because of differences in nationality. The European Community, as a special supranational organization, has constructed its own unique rule of law system to ensure its effective implementation in member States. Through the basic treaties and the judicial practice of the European Court of Justice, the direct application and preferential application of EU law to member States are given the supreme legal effect. On the basis of the guarantee of fundamental rights principle of EU law, the measures of bank crisis rescue in Cyprus have not only damaged the property rights of bank depositors and their nationals, but also infringed on the equal rights of the injured depositors in the bank restructuring program. At the same time, it deprives depositors of the right to reasonably expect. In addition, the bail-out of Cyprus's banks involved infringement, and its domestic banking regulator did not perform its corresponding regulatory duties in respect of risky investments by banks in the country. The European Union's pan-European financial regulatory system has also failed to fulfil its obligations to prudential regulation in member countries' financial systems. Moreover, national governments and euro-zone groups have used third-party access to public power to obtain self-financing, resulting in the loss of private property and neglect of social and public interests in some ways. In the European Union's judicial review system, the European Court of Justice's suit for damages for infringement and the review of the omission of EU institutions, in addition to the domestic administrative litigation system in Cyprus, It can provide judicial relief for the injured depositors in the course of the bank rescue, but due to the need for theoretical reasoning on tort matters and the difficulty of proving the burden of proof, coupled with the protection of the system of regulatory immunity, It is difficult for uninsured depositors to make up for the loss in practice. Through the analysis of the rescue incident of Cypriot banks, we can see that in the course of crisis prevention for banks, we should strengthen the practical implementation of the legal supervision of transnational banks, so as to prevent the damage to the interests of the public caused by the sovereign debt crisis in the first place. At the same time, in the process of bank rescue, we should pay attention to the protection and realization of depositors' property interests and related rights.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D996
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