我国商业银行次级债法律制度研究
发布时间：2018-10-15 09:11
【摘要】：自20世纪初美国发展次级债务关系以来,次级债作为补充银行资本的一种工具,日渐得到了国际银行界的认可和青睐,目前在我国的应用也很广泛。2003年银监会颁布的银监发[2003]25号《关于将次级定期债务计入附属资本的通知(已废止)》在我国确立了商业银行次级债这一新事物,为商业银行通过发行次级债补充银行资本开辟了道路。此后,《商业银行次级债券发行管理办法》、《关于完善商业银行资本补充机制的通知》和《商业银行资本管理办法》等商业银行次级债相关的法律规范陆续颁布。这些规章制度的出台对我国建立并规范银行次级债市场起到了至关重要的作用。但与国外发达国家相比,我国关于次级债的实践与立法的时间还比较短,其法律环境尚不健全,存在许多法律问题。商业银行在利用次级债便捷、高效、灵活的优点补充资本,调整资本结构的同时,也引发了一些实践上的法律问题与银行的风险隐患。同时,在理论上,我国学者对银行次级债的研究多是在金融领域,而对其法律制度的研究则并不多。因此,对我国商业银行次级债的法律制度进行研究,不仅具有紧迫的现实意义,而且具有重要的理论意义。本文以我国商业银行次级债的法律制度为研究对象,共分四部分。 第一部分介绍商业银行次级债的基本理论,包括商业银行次级债的概念、法律性质及功能。 第二部分以比较的方式阐述美英法德四个国家国家商业银行次级债的法律制度,为第四章提出完善建议做借鉴。 第三部分根据我国现有的商业银行次级债的相关法律规定,分析我国商业银行次级债的法律制度存在的问题,包括：第一,商业银行次级债的法律效力问题；第二,商业银行次级债的特殊属性给我国的《合同法》以及《破产法》带来的疑问；第三,目前我国对商业银行次级债进行监管的法律规范不完善。 第四部分针对上一部分所提出的问题,提出解决问题、完善商业银行次级债监管制度的建议。包括：第一,将法定次级债加以专门立法,或者在基本法律中加以规定。第二,在《合同法》领域,确认并建立完备的利他合同制度,并通过规定附加条件的方式对次级债权人与债务人的抵消权作出限制；在《破产法》领域引入信托机制,并认可在次级债协议中排除次级债权人的抵消权的约定,以及赋予次级债权人在破产程序中相关的必要权利。第三,通过健全我国商业银行次级债的发行机制、严格我国商业银行次级债的互持制度、完善我国商业银行次级债的信息披露制度,来完善我国商业银行次级债的监管规范。
[Abstract]:Since the United States developed the relationship of subprime debt in the early 20th century, subprime debt, as a tool to supplement the capital of banks, has been increasingly recognized and favored by the international banking community. At present, it is also widely used in our country. In 2003, the Banking Regulatory Commission issued the Circular of Banking Supervision and issuance [2003] 25 (annulled) on the inclusion of subordinated periodic debt into the subsidiary capital, which has established the new thing of commercial banks' subordinated debt in China. Commercial banks through the issuance of secondary debt to replenish bank capital opened the way. Since then, the measures for the issuance of subordinated bonds of commercial banks, the notice on perfecting the capital supplementary mechanism of commercial banks, and the measures on capital management of commercial banks have been promulgated one after another. These rules and regulations have played a vital role in establishing and standardizing the secondary debt market in China. However, compared with the developed countries, the practice and legislation of the subordinated debt in our country is relatively short, its legal environment is not perfect, and there are many legal problems. Commercial banks make use of the advantages of convenient, efficient and flexible to supplement capital and adjust the capital structure, at the same time, it also leads to some practical legal problems and risk risks of banks. At the same time, in theory, Chinese scholars mostly study the secondary debt of banks in the field of finance, but the study of its legal system is not much. Therefore, the study on the legal system of commercial banks' subordinated debt is not only of urgent practical significance, but also of important theoretical significance. This paper focuses on the legal system of secondary debt of commercial banks in China, which is divided into four parts. The first part introduces the basic theory of commercial bank subordinated debt, including the concept, legal nature and function of commercial bank subordinated debt. The second part expounds the legal system of the commercial banks of America, Britain, France and Germany in a comparative way, and makes some suggestions for the improvement of the fourth chapter. The third part analyzes the problems in the legal system of the subordinated debts of the commercial banks according to the relevant legal provisions of the commercial banks in our country, including: first, the legal effect of the subordinated debts of the commercial banks; second, The special attribute of the subordinated debt of the commercial bank brings the question of the contract law and bankruptcy law of our country. Thirdly, the legal norm of the supervision of the subordinated debt of the commercial bank in our country is not perfect at present. In the fourth part, the author puts forward some suggestions to solve the problems and perfect the supervision system of commercial banks' subordinated debt. Include: first, the statutory secondary debt to specific legislation, or in the basic law to provide for. Second, in the area of contract law, to recognize and establish a complete system of altruistic contracts and to restrict the rights of set-off between secondary creditors and debtors by imposing conditionalities; and to introduce trust mechanisms in the area of insolvency law, It also endorses the agreement to exclude the right of set-off of secondary creditors in the subprime debt agreement and to grant the secondary creditors the necessary rights in insolvency proceedings. Thirdly, by perfecting the issuing mechanism of the subordinated debt of the commercial banks of our country, strictly enforcing the mutual holding system of the subordinated debts of the commercial banks of our country, and perfecting the information disclosure system of the subordinated debts of the commercial banks of our country, we should perfect the supervision and regulation of the subordinated debts of the commercial banks in our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.28
[Abstract]:Since the United States developed the relationship of subprime debt in the early 20th century, subprime debt, as a tool to supplement the capital of banks, has been increasingly recognized and favored by the international banking community. At present, it is also widely used in our country. In 2003, the Banking Regulatory Commission issued the Circular of Banking Supervision and issuance [2003] 25 (annulled) on the inclusion of subordinated periodic debt into the subsidiary capital, which has established the new thing of commercial banks' subordinated debt in China. Commercial banks through the issuance of secondary debt to replenish bank capital opened the way. Since then, the measures for the issuance of subordinated bonds of commercial banks, the notice on perfecting the capital supplementary mechanism of commercial banks, and the measures on capital management of commercial banks have been promulgated one after another. These rules and regulations have played a vital role in establishing and standardizing the secondary debt market in China. However, compared with the developed countries, the practice and legislation of the subordinated debt in our country is relatively short, its legal environment is not perfect, and there are many legal problems. Commercial banks make use of the advantages of convenient, efficient and flexible to supplement capital and adjust the capital structure, at the same time, it also leads to some practical legal problems and risk risks of banks. At the same time, in theory, Chinese scholars mostly study the secondary debt of banks in the field of finance, but the study of its legal system is not much. Therefore, the study on the legal system of commercial banks' subordinated debt is not only of urgent practical significance, but also of important theoretical significance. This paper focuses on the legal system of secondary debt of commercial banks in China, which is divided into four parts. The first part introduces the basic theory of commercial bank subordinated debt, including the concept, legal nature and function of commercial bank subordinated debt. The second part expounds the legal system of the commercial banks of America, Britain, France and Germany in a comparative way, and makes some suggestions for the improvement of the fourth chapter. The third part analyzes the problems in the legal system of the subordinated debts of the commercial banks according to the relevant legal provisions of the commercial banks in our country, including: first, the legal effect of the subordinated debts of the commercial banks; second, The special attribute of the subordinated debt of the commercial bank brings the question of the contract law and bankruptcy law of our country. Thirdly, the legal norm of the supervision of the subordinated debt of the commercial bank in our country is not perfect at present. In the fourth part, the author puts forward some suggestions to solve the problems and perfect the supervision system of commercial banks' subordinated debt. Include: first, the statutory secondary debt to specific legislation, or in the basic law to provide for. Second, in the area of contract law, to recognize and establish a complete system of altruistic contracts and to restrict the rights of set-off between secondary creditors and debtors by imposing conditionalities; and to introduce trust mechanisms in the area of insolvency law, It also endorses the agreement to exclude the right of set-off of secondary creditors in the subprime debt agreement and to grant the secondary creditors the necessary rights in insolvency proceedings. Thirdly, by perfecting the issuing mechanism of the subordinated debt of the commercial banks of our country, strictly enforcing the mutual holding system of the subordinated debts of the commercial banks of our country, and perfecting the information disclosure system of the subordinated debts of the commercial banks of our country, we should perfect the supervision and regulation of the subordinated debts of the commercial banks in our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.28
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