中美银行监管法制比较研究

【作者】 王涛；

【导师】 盛学军；

【作者基本信息】 西南政法大学 ， 经济法， 2005， 硕士

【摘要】 银行业是一国经济发展的重要动力,但银行业天生的脆弱性和危害的巨大性使各国均对银行监管寄予厚望。作为重要的公共产品,各国无一例外的将监管纳入法制的轨道,对银行监管的整个过程积极构建法制框架(该框架不只是正式的法律制度,也包括法律意识等非正式的内容)。因此,一国银行监管的效率和水平很大程度上取决于银行监管法制的完善程度。按照加入WTO的承诺,我国金融业将逐步扩大对外开放的领域,银行业的市场竞争日益激烈。伴随着市场的深化,新的金融工具和金融产品不断涌现,我国已经构建的银行监管法制框架,在新形势下面临着诸多的挑战。为适应银行业发展的需要,变革完善我国的银行监管法制就成为具有重要理论和现实意义的工作。美国作为银行监管效率较高的国家之一,其银行监管法制的框架体系对我国银行监管法制的完善有着较强的现实借鉴意义。 本文用比较制度分析和最小成本的方法,将我国银行监管法制与美国银行监管法制进行比较,以期从中找到完善我国银行监管法制的有益因素。文章分为五个部分:第一部分导论,首先通过对银行监管法制内涵的界定,明确银行监管法制是现行法和与其相适应的法律意识、法律实践的有机体系。随后分析目前国际及我国银行监管法制现状,在认清现状的基础上,提出运用比较制度分析和最小成本方法对中美银行监管法制进行比较研究,并确定三个研究对象:银行监管主体法律制度、银行监管方式法律制度、银行监管法律观念。;第二至四部分分别对中美两国银行监管主体法律制度、银行监管方式法律制度、银行监管法律观念进行了比较分析:通过对银行监管主体架构、主体独立性、主体内部机构设置、主体间权限划分、主体目标确定及专门存款保险机构的比较分析,指出我国银行监管主体法律制度在主体独立性、内部机构设置、监管目标等方面存在的缺陷:通过对银行监管方式法律制度规定的监管方法和手段的比较分析,指出我国银行监管法制在监管方式上有待继续朝专业化、市场化方向努力;通过两个案例的分析比较,指出我国银行监管法律观念方面存在缺乏“零容忍”、“避免利害冲突”、“专业化”等观念的问题。第五部分针对我国银行监管法制存在的问题,在本文分析比较的基础上,作者提出了完善我国银行监管法制的意见和建议:对银行监管主体法律制度,应在增强监管主体经济、组织、职权独立性基础上,将监管目标多元化,按照银行监管规律改革内部更多还原

【Abstract】 Banking is playing a more important role in national economy. However, because of its inborn weaknesses and potential enonmous harm to national economy, many countries pay more attention to the banking supervision. Being a public good, a lot of countries spend much time on constituting a series of legal systems aiming at banking supervision.(This legal systems includes not only legal institition but also legal theory.)As a matter of that, the effeciency and effectiveness of banking supervision depend much on the legal system of it according to the commitments referred to protocol on the Accession of the People’s Republic of China, We will gradually enlarge the opening area in finance. well, the competition in banking will becoming increasingly fierce. As the development of market economy, a vast number of new financial tools and products will emerge. so, our banking supervision legal system is facing a great challenge. In order to adapt to the development of banking, it is essential to perfect our banking supervision legal system. As far as the author concerned, the experience of America whose effeciency of banking supervision is higher than many countries has an important meaning to the perfection of our banking supervision legal system.Comparative system analysis and cost minimum are used in this thesis, the author makes some comparisons between the banking supervision legal system of America and that China. He wishes to give some advice to the perfection of our legal system of banking supervision. The thesis is made of five parts.Part I, base theory. The author define the notion of banking supervision in order to make clear that banking supervision legal system is a mechanism which is consisted of present law, legal consciousness and practice. And then, the author choose three target as fellows: the legal system of the subject of banking supervision, The legal system of the method of banking supervision, the legal consciousness of banking supervision by compare the system of America and China.The cone of the thesis nests in the second, third, fourth part. The main contents: the comparison and analysis of the legal system of the subject of banking supervision, The legal system of the method of banking supervision, the legal consciousness of banking supervision of America and China. By way of comparing the formation of banking supervision, independence, interior installment of organization, the power distribution, the target detemination and deposit insurance organization in the subject of supervision. The author points out the deficiency in the subject independence, the interior installment of organization and the target of supervision in our banking supervision legal system. And also points out how to promote the professionalization and marketing of our system, through the analysis of the method and ways of supervision in banking supervision. By way of comparison and analysis of two cases, the author points out that we are badly in need of the concept of avoidance of conflict and professionalization.Part V After the comparison and analysis of banking supervision legal system, the author voices the views and advices to perfect our banking supervision legal system. It is important to enhance the independence of finance and organization as well as power of supervision subject and increase the supervision target. At the same time, the government should authorize sufficient power of inspection to PBC and establish professional deposit insurance organization on the basis of market as well as promote the professionalization and marketing to make the supervision legal system stay opening. What is more, we should bring the new method which was found in the supervision practice into legal system. As to the concept of banking supervision legal system, it is important to change the old and form the new and establish better legal system through the working of present one. And promoting the supervision organization and object of supervision as well as the whole society to form the legal concept which adapt to the demand of contemporary banking supervision legal system, Which help to enhance the effeciency of our supervision legal system.In perfection of our banking supervision legal system, the present lawplays a vital role in the improvement of the whole banking supervision legal system. The change of legal concept also depend on the support of present law. Bing the main provider of present law, the government should establish an open system for its banking supervision legal system on the basis which respect the development of bank and law of banking supervision. And studying the superior supervision law and bringing the institutions which emerge in the supervision practice into the law in order to adapt to the development of banking supervision and enhance the development of banking in our country.更多还原