Financial law is the general name of laws regulating financial relations. Financial relationship includes financial supervision relationship and financial transaction relationship. The so-called "financial supervision relationship" mainly refers to the supervision and management relationship between the government financial authorities and financial institutions, financial markets, financial products and financial transactions. The so-called "financial transaction relationship" mainly refers to the relationship between financial institutions, between financial institutions and the public, and between the public in various financial markets such as money market, securities market, insurance market and foreign exchange market.
Under the general name of financial law, laws related to the relationship between financial supervision and financial transactions can be divided into banking law, securities law, futures law, negotiable instrument law, insurance law, foreign exchange management law and other specific categories. Financial trust belongs to the category of financial law, and ordinary and general trusts belong to the category of civil law.
China does not have a law named after "Financial Law". A specific law involving finance is usually named after the name of the financial industry involved. For example, China People's Bank Law and Commercial Bank Law. At present, China has promulgated quite a number of financial laws and regulations. By the end of 2000, the National People's Congress had promulgated a 1 financial law, that is, the People's Bank of China Law. There are eight financial laws promulgated in the National People's Congress Standing Committee (NPCSC), including Commercial Bank Law, Securities Law, Insurance Law, Negotiable Instruments Law and Guarantee Law. Financial regulations issued by the State Council 142. 3523 Financial regulations promulgated by various institutions in the State Council. There are 39 financial judicial interpretations in the Supreme People's Court and 8 in the Supreme People's Procuratorate. The above total is 372 1.
The above financial laws and regulations are concrete norms, but they all have a common feature, that is, directly adjusting financial relations. Civil law and other laws may also adjust financial relations, but not directly, but indirectly. Therefore, when studying financial legal issues, it is in line with the systematic characteristics of finance itself if they are integrated and studied systematically. The characteristics of financial relations determine the following three main characteristics of financial law.
Second, the characteristics of financial law
(A) the systematic nature of financial law
The traditional business relationship is a "one-on-one" relationship, for example, consumers go to a store to buy things, and they are buying and selling relationships. If this store closes, consumers will go to another store to buy things. And if one store closes, the business of another store may be more prosperous. However, the relationship between banks and depositors is different. If a bank goes bankrupt, it may cause anxiety in the whole banking industry. This is what the financial community calls a "chain reaction". Because depositors began to doubt the ability of all banks to pay. As a result, people began to squeeze other banks, and as a result, many banks may fail.
The relationship of financial law adjustment is not one-to-one, but one-to-many, many-to-one Because the financial industry has the characteristics of "chain reaction", financial law has a systematic impact on the financial industry. For example, when formulating and implementing the commercial banking law in China, we should not only consider the commercial banking law, but also consider the relationship with the securities law. In the past, bank funds were not allowed to enter the securities market, and the securities market would shrink because of insufficient sources of funds. Banks are now allowed to accept stock mortgage loans, and the stock market is more abundant than in the past, and the stock market will swell. For another example, when the interest on bank deposits increases, the trading volume in the securities market usually decreases accordingly; It will increase. In the financial field, banks and securities markets are like two interconnected "reservoirs", and funds are like "water" in the reservoir. When the pressure in the financial market rises, "water" will flow from one "reservoir" to another. Apart from banks and securities markets, other financial markets are also like interconnected "reservoirs", and the "water" of funds can flow from the bank credit market to the securities market; It can also flow from the securities market to the insurance market; It can flow from the securities investment fund market to the securities market, or to the foreign exchange market or the bank savings market.
Next year, after China joins the World Trade Organization, the domestic financial market will be in line with the international financial market to a greater extent. Therefore, the "water" of international finance and the "water" of domestic finance will circulate with each other to some extent. At that time, the systematicness of financial law will not only be reflected in domestic law, but also in international financial law, just as the US dollar will raise interest rates and Hong Kong stocks will fall to varying degrees.
(B) the macro-control of financial law
Financial law is a law to adjust the relationship between financial transactions and financial supervision, so it has more obvious macro-control than other commercial laws and civil laws. The financial law stipulates four elements of financial relations, namely, market access, business scope, interest rate exchange rate and qualification examination. As the above factors have a direct or indirect impact on the national economy, the role of financial law in macro-control is more obvious than other laws.
The macro-control of financial law is also manifested at the international level. Financial laws are originally national or regional, and there are many differences in financial laws in different countries. However, due to the development trend of financial globalization, international organizations such as the International Monetary Fund (IMF) and the World Trade Organization (WTO) actively promote global financial services trade and financial market opening policies, as well as financial liberalization. The financial laws of many countries in the world, especially some Asian countries, are increasingly influenced by financial globalization, which makes the financial laws of many countries show more internationality.
The macro-control of financial law also involves the international financial market. For example, the security of international financial system, the cooperation of international anti-money laundering action, the opening of international financial service trade market, international financial settlement, international financial market transactions, international financing activities, international exchange rate agreements and alliances, information exchange and cooperation between countries where foreign banks are located and countries where their head offices are located, and the electronization and digitalization of international finance have all made financial law develop from domestic law to international cooperation law.
(C) Pay attention to the efficiency of capital circulation
People often say that "time is money" and "an inch of gold can't buy an inch of time". These two sentences link time and money, and also reflect the importance of financial intermediation and efficiency in the financial industry. Therefore, the laws regulating financial relations also require special attention to the efficiency of financial intermediaries, that is, special attention to the time factor in financial relations. For example, if a company in China owes a debt to a Japanese company, and the debt is calculated in US dollars, the amount to be paid will vary greatly due to the different exchange rates of US dollars against Japanese yen in different periods. Financial transaction relationship is particularly sensitive to time, so when financial law adjusts financial relationship, it should also pay special attention to the efficiency of capital circulation.
Three. Main contents of financial law
(A) the main contents of the financial supervision law
1, on financial market access
The competent financial department of the government stipulates the standards for the establishment of financial institutions, also known as financial market access qualifications. Due to the high risk and systematicness of financial market, governments all over the world have strict examination of financial market access qualifications, and all of them have stipulated higher access qualifications.
Compared with the international average, China's financial market access qualification is relatively high. For example, there are five conditions for the establishment of a commercial bank: there are articles of association that meet the provisions of the Commercial Bank Law and the Company Law; It has the minimum registered capital as stipulated in the Commercial Bank Law; Having directors (presidents), general managers and other senior managers with professional knowledge and business experience; Having a sound organizational structure and management system; Having business premises, safety precautions and other business-related facilities that meet the requirements. The minimum registered capital requirement is 1 100 million yuan. The minimum registered capital of a city cooperative commercial bank is 1 100 million yuan. In contrast, the minimum registered capital requirement of foreign-funded commercial banks stipulated in China is 40% or less.
In China, the establishment of a securities company must be approved by the the State Council Securities Regulatory Authority. The minimum registered capital for establishing comprehensive securities companies is 500 million yuan, and the minimum registered capital for establishing brokerage securities companies is 50 million yuan.
In China, the establishment of a securities registration and settlement institution must be approved by the securities regulatory authority of the State Council, and its own funds should be no less than 200 million yuan. In China, the establishment of an insurance company needs the approval of the competent department of the State Council, and the minimum registered capital of an insurance company is 200 million yuan.
If the above conditions are compared with other non-financial companies, the conditions for the establishment of other companies are much lower. For example, to set up a limited liability company in China, only two or more shareholders but less than 50 shareholders need to participate, and the minimum registered capital is 654.38 million yuan (consulting and service industry), 300,000 yuan (commercial retail industry) and 500,000 yuan (production and operation industry) respectively. It does not exceed the requirement of 65.438 billion yuan, but the minimum amount of financial institutions is also 50 million yuan or 65.438 billion yuan, which shows that the access conditions of the two types of companies are very different.
China's market access also has special provisions for foreign-funded financial institutions: the establishment of foreign-funded banks and joint venture banks in China requires the approval of the People's Bank of China, with a minimum registered capital of 300 million yuan, which is a freely convertible currency. The minimum registered capital of a foreign-funded financial company or a joint venture financial company is 200 million yuan equivalent to a freely convertible currency; The establishment of branches in China by foreign banks must be approved by the People's Bank of China. The total assets at the end of 65,438+0 before the application of the foreign head office are not less than 20 billion US dollars. At the same time, the equivalent convertible currency of not less than RMB 6,543.8 billion shall be allocated as the working capital of domestic branches free of charge.
In addition to the above-mentioned registered capital requirements, the access review also includes the review of the applicant's property right structure, business plan, business system, internal organizational structure, qualifications of directors and senior managers, financial status and business prospects, as well as the review of the applicant's affiliated companies and business mergers. After the approval of the establishment of financial institutions, it is necessary to review the business scope, equity transfer, major investments and acquisitions of financial institutions.
Not only does China's financial authorities strictly examine access qualifications, but the Basel Association, an international banking regulator established by the Organization for Economic Cooperation and Development (OECD), also puts forward similar examination requirements in its core principles (1September 1997).
2. Business scope of financial institutions.
The scope of business allowed by financial institutions is also an important issue that needs to be stipulated by law. If the prescribed business scope is larger, the financial institutions will have greater opportunities for profit, and at the same time, the risks will be greater. On the contrary, the narrower the scope of financial business, the smaller the chances of financial institutions making profits and the corresponding reduction of risks.
In the field of international finance, there have always been two modes of "separate operation" and "mixed operation". Most financial institutions in continental European countries adopt mixed operation mode. The United States from 1933 glass? After the promulgation of Diegel Act, it adopted an independent business model. According to the provisions of China's commercial banking law and securities law, China adopts the mode of separate operation.
From 65438 to 0986, Britain began to reform the financial system, merging financial supervision institutions into one institution, and the business of financial institutions could be mixed.
From 65438 to 0996, Japan followed the example of Britain and put forward the Japanese version of financial system reform, including mixed operation reform. Japan's financial reform bill was successively implemented on June 65438+1 October1day, 2000.
1999165438+10 In October, US President Bill Clinton signed the Financial Services Modernization Act, which will be implemented for 66 years. The Diegel Act was repealed. The new bill gives up the restriction of separate operation and allows the financial industry to operate in a mixed way.
At present, China is still a country that operates the financial industry separately. For example, the business scope of commercial banks in China is still limited to traditional business, and securities investment and trust business are not allowed. China's business scope is very strict: "Commercial banks are not allowed to engage in trust investment and stock business in People's Republic of China (PRC), and they are not allowed to invest in non-self-use real estate. Commercial banks are not allowed to invest in non-bank financial institutions and enterprises in People's Republic of China (PRC).
Similarly, the business scope of securities companies is also formulated according to separate operations. Securities companies in China are divided into comprehensive securities companies and brokerage securities companies. The former has a wide range of business, and can engage in securities brokerage business, securities proprietary business and securities underwriting business. Brokerage securities companies are only allowed to specialize in securities brokerage business and are not allowed to engage in self-operated business. In order to prevent other funds from flowing into the securities market, the law also prohibits "bank funds from illegally flowing into the stock market". At the same time, the law also stipulates that "state-owned enterprises and enterprises controlled by state-owned assets shall not speculate on listed stocks".
At present, the securities regulatory agencies in the State Council have explored the diversification of capital channels in the securities market and adopted a loose policy. At present, the government allows insurance funds to enter the stock market indirectly through securities investment funds, and also allows bank funds to provide financing to securities companies through stock mortgage. It also allows funds including state-owned enterprises and state-controlled enterprises to indirectly invest in securities through investment funds.
"Separate operation" and "mixed operation" reflect the different stages of financial industry development, and also reflect the different philosophies of governments in dealing with financial risks: the philosophy of separate operation is to avoid risks, and the philosophy of mixed operation is to manage risks. How to deal with risks depends not only on the government, but also on the self-discipline mechanism of financial institutions, the supervision experience of financial institution supervisors and the rationality and maturity of financial market investors. Separate operation requires less self-discipline mechanism of financial institutions, experience of supervisors and rationality of investors. The latter seems more demanding.
Whether China's financial industry can engage in "mixed operation" in the future depends on whether the conditions are met. When conditions are ripe, it is not too late to propose reforms.
3. Self-discipline of financial institutions
Most financial assets are obtained in the form of liabilities, and financial assets belong to "other people's money" in the sense of creditor's rights; The risk of this industry is very high and it is a systemic risk. When financial institutions have problems, it is easy to cause a chain reaction, leading to a crisis in the entire financial system. Therefore, the self-discipline mechanism of financial institutions is very necessary.
The self-discipline mechanism is manifested in three levels: the first is the self-discipline mechanism within financial institutions; The second is the self-discipline mechanism between financial peers; The third is the supervision mechanism of customers to financial institutions in the financial market.
China's commercial banks "shall, in accordance with the provisions of the People's Bank of China, formulate their own business rules and establish and improve their business management, cash management and security systems". At the same time, "commercial banks should establish and improve the audit and inspection system for deposits, loans, settlement and bad debts. Commercial banks should conduct regular audits, inspections and supervision of their branches. "
China's securities industry has established trade associations, whose duties include: assisting the securities regulatory agencies to educate and organize members to implement securities laws and administrative regulations; Formulate the rules that members should abide by; To supervise and inspect the behaviors of members, and to give disciplinary sanctions to those who violate laws, administrative regulations or the articles of association.
China Commercial Bank Industry Association was established with the approval of relevant departments in the State Council. Trade associations of securities companies and insurance companies have also been established according to law.
On the basis of law, trade associations of financial institutions formulate stricter codes of conduct to supervise the daily business activities of operators in this industry, so as to maintain fair competition and market order in the industry market.
4. Protection of depositors and public investors.
In the financial transaction relationship regulated by financial law, the law pays more attention to protecting the interests of depositors or investors. This is the difference between financial law and general contract law. Financial institutions operate more with "other people's money". If the operation fails and depositors or fund investors do not participate in the operation, it is obviously too heavy for depositors and fund investors to bear the responsibility again. Therefore, the financial law protects depositors and fund investors more. Specific performance in:
(1) Commercial banks have special chapters to protect depositors. The main contents of protection are: first, follow the principles of voluntary deposit, freedom of withdrawal, interest-bearing deposit and confidentiality for depositors; Second, refusing to inquire, freeze or deduct personal savings deposits outside the legal authorization; Third, refuse to inquire, freeze or deduct company deposits unless authorized by laws and regulations; Fourth, ensure the payment of deposit principal and interest, and do not delay or refuse to pay deposit principal and interest; Fifth, in order to protect the interests of depositors, commercial banks should also deposit deposit reserve funds with the People's Bank of China, leaving sufficient reserve funds; Sixth, determine the deposit interest rate according to the upper and lower interest rates stipulated by the People's Bank of China, and make an announcement.
(2) The Securities Law also protects the interests of investors. The main contents are divided into two categories, one is the full disclosure of information required for securities issuance, the approval of government departments and the continuous disclosure after issuance. The second is to prohibit trading behavior and protect fair trading in the securities market. For example, insider trading, joint or continuous trading or manipulation of securities trading prices are prohibited; It is forbidden to collude with others to trade securities with each other at the time, price and manner agreed in advance, or to buy or sell securities that are not held by each other, thus affecting the price or volume of securities trading; Self-buying and self-selling with oneself as the trading object without transferring ownership affects the trading price or volume of securities. State functionaries and news media practitioners are prohibited from fabricating and disseminating false information that seriously affects securities trading; Employees of securities trading and intermediary institutions are prohibited from making false statements or misleading information in securities trading; Securities companies and employees are prohibited from engaging in all kinds of acts of cheating customers' interests recognized by law. (2) The main contents of financial transaction law
The development of financial market is mainly reflected in the development of financial transactions. Formally, the financial transaction relationship belongs to a contractual relationship. Because this kind of contract involves financial transactions, the main contents of financial law to adjust the financial transaction relationship can be summarized as four aspects:
1, macro-control of financial market
Financial transaction contract, whether it is a loan contract or a securities transaction contract, is the relationship of rights and obligations between the parties from the perspective of contract law. However, from the perspective of financial law, financial transaction contract is not only a contract between two parties, but also a contract subject to macro-control by the government.
We can take the popular "personal housing guarantee loan" (hereinafter referred to as "personal loan") as an example to illustrate the government's macro-control situation. Starting from 1998, China's commercial banks began to hold "individual housing guarantee loans". By the end of 2000, the housing loans for urban residents issued by commercial banks nationwide reached 399,654.38 billion yuan, accounting for 40% of the new loans this year.
On the surface, "personal loan" is the loan contract relationship between the borrower and the bank. However, this lending relationship is subject to the macro-control of the government from its emergence, development to its final end. This provision is stipulated in the Financial Law and related laws and regulations.
The macro-control of "personal loan" began at 1997. First, the government changed its concept, and urban residents' housing changed from non-commercialization to commercialization. Then, the competent financial department of the government approved commercial banks to carry out "personal loan" business pilot in individual cities. Then the loan business was promoted throughout the country, and the entire real estate market and financial loan market began to adjust and improve. More than 50 million square meters of vacant real estate in cities across the country and hundreds of billions of bank loan funds occupied by real estate have re-flowed. It also indirectly promoted the development of more than 40 related industries, solved the re-employment of a number of laid-off workers in cities, and provided new employment opportunities for some rural surplus laborers. From the example of "personal loan", we can see that the government's macro-control has a great influence on the financial industry and other financial-related industries.
2. Maintain financial market order.
Due to the shortage of funds in China, the financial market is banned from time to time from the scope permitted by the financial legal system. For example, in the banking field, funds are "extracorporeal circulation", "random fund-raising", "local protectionism of funds", "difficulty in mortgage enforcement", "violent robbery of bank cash" and "injury to bank staff and security personnel". In the field of foreign exchange management, there has been a "foreign exchange black market"; "Illegal establishment of securities trading places for private trading" and "insider trading in the securities market" in the securities market; "Insurance fraud" in the insurance market. Therefore, it is necessary to strengthen the construction of financial legal system and reduce and prevent the above-mentioned illegal crimes in the financial field. To this end: first, in financial legislation, we must consider solving the crime problem in this field; Second, in all kinds of transactions in the financial market, we should design standardized procedures in advance, adopt standardized procedures and system construction, and assist technical measures to prevent violations and crimes; Third, educate financial practitioners, especially senior managers, and enhance the self-discipline of financial legal concept and financial professional ethics.
3. Establish a financial credit mechanism.
The socialist market economy should be based on credit, and credit should be accumulated and evaluated by transaction records. Personal records in financial payment settlement, as early as 100 years ago in American and European financial markets, were used as reference factors for credit records and evaluation by industry management systems. In the process of implementing socialist market economy in China, it is very important to establish a perfect financial credit system. This kind of credit relationship needs financial law to establish and maintain.
4. Standardize the opening of China's financial market.
Among the package framework agreements of the World Trade Organization (WTO), there is the Package Agreement on Trade in Services (GATS). The framework of service trade agreement includes financial service trade agreement. This agreement was signed on 1997 12 13 and came into effect on 1999 1. At present, 102 WTO members have promised to open financial markets.
After China's entry into WTO, it is also faced with the question of whether to accept the Agreement on Trade in Financial Services and the opportunity to open the domestic financial services market. China's financial and legal circles should step up the study of relevant legal documents, compare the development of China's financial industry, and make legislative preparations in advance.
We are also facing another challenge of the financial revolution, that is, financial electronization and informatization. The electronization and informatization of finance will have another impact on the traditional financial industry in China. Internationally, the electronization and informatization of the financial industry are changing the external form and internal content of financial institutions. The number of bank outlets is decreasing, replaced by automatic teller machines (ATMs) and even online banking systems installed on laptops.
The online operation of securities trading has turned the stock trading hall into a ceremony place for listing new shares, and the actual trading can completely take the "no place" operation. "Move large households to their homes" and entrust the trading of securities by telephone, basically realizing the "paperless" and "no place" of stock trading. The application of this electronic and information technology in the financial market is transforming financial transactions into financial information data processing. Future financial institutions will evolve into financial data information processing and service companies.
This change will inevitably lead to new legal problems and raise questions about the existing financial law in China. Due to the accumulation of legislative experience in China's financial law, it is mainly formed on the basis of "paper" and "field" financial transactions and supervision. It is still unclear what problems financial electronization and informatization will bring to financial legislation. However, researchers in the field of financial law should quickly carry out research and prepare new legislative designs from now on.