论“银行债权”的法律地位及其重构

On the legal position of bank creditor's rights and its reconstruction

在外资银行逐步抢滩中国,美国次贷风波侵袭全球的情况下,为中国经济的发展提供强大支撑、影响中国金融安全和经济全球化战略的顺利实施、影响改革开放政策的深入执行的中资银行的竞争力和中国银行业的系统安全问题,越来越引起人们的关注。而关系到银行系统生存和发展的银行债权的法律定位问题,更值得广大专家和学者去思考。文章试图从分析目前银行债权的一般定义和法律定位入手,深入剖析"一般债权论"给银行债权带来的冲击与危害,进而从道德和法律两个方面,提出银行债权"特殊债权论"的思路,以抛砖引玉,供学者们探讨。

When the foreign banks are gradually snatching market share in China and the American subprime woes have hit the global, the competitive power of the Chinese Banks and the system security of the China＇s banking industry have caused more and more attention of people. The former provides strong support for Chinese economic development and has great influence both on Chinese financial security and the smooth implementation of economic globalization strategies as well as the thorough carrying out of the reform and opening up policy. The legal position of the bank creditor＇s rights, which concerns the survival and development of the bank system, is more worthy of many experts＇ thinking. Starting from analysis of the general definition and legal position of the current bank creditor＇s rights, this article tries to dissect the shock and harm the general theory of the creditor＇s rights has brought to the bank creditor＇s rights, and then eome up with the author＇s opinion of special bank creditor＇s rights from the two aspects of morality and law in the hope that the crude remarks may draw forth by abler people, thus lead a discussion for the scholars.