论金融监管竞争及其法律治理

On Financial Supervision Competition and Its Legal Governance

监管竞争是中国金融监管体制的重要特征。金融监管机构之间竞争格局的形成,起源于监管的管控传统,为提高监管效率的现实需要所逐步推动,并在高速增长的金融产业利益中得以强化。新的国务院机构改革方案改变了监管竞争的形式,但并未改变其实质和动因。监管竞争对金融市场形成了复杂的制度效应,在细化监管分工、提高监管效率的同时增加了监管协同的难度,在增强监管能力的同时加深了金融市场对监管的依赖,在加快监管法制建设的同时加剧了"立法主义"的倾向。目前以央行牵制和机构及人事调整为主的治理策略,无法解决金融监管竞争带来的负外部性,反而会削弱其内涵的制度竞争力。在混业经营与分业监管的大背景下,合理的法律治理进路应是激励监管机构从监管权威导向的竞争转向公共产品供给导向的竞争,构建有效、实质性的监管协同机制以抑制监管竞争的负外部性,促进法律监管规则与行业性监管规则、金融企业内部监管规则之间的衔接,强化金融监管法律规范的私人实施。

Supervision competition is an important feature of Chinese financial supervision system. The formation of the competitive landscape between securities, banking, insurance and other financial supervision institutions originated from the supervision tradition of "control"State Council’s new institutional reform has changed the form of supervision competition, but has not changed its substance and motivation. Supervision competition has formed complex institutional effects on financial markets. It has increased the difficulty of supervision coordination while refining the supervision division and improving the efficiency of supervision. It has strengthened the supervision capacity while deepening the dependence of financial markets on supervision. It has accelerated the establishment of supervision legal systems while the establishment has intensified the tendency of "colonialism". At present, the governance strategy based on central bank containment and institutional and personnel adjustment cannot solve the negative externalities brought about by financial supervision competition, but will weaken its institutional competitiveness. Under the background of mixed finacial operation and separate supervision, a reasonable approach to legal governance should encourage regulators to shift from supervision authority-oriented competition to public product supply-oriented competition, to build an effective and substantial supervision coordination mechanism to curb the negative externalities of supervision competition, to promote the connection between legal supervision rules and industry supervision rules, internal supervision rules of financial enterprises, and to strengthen the private implementation of legal norms of financial supervision.