穿透式监管的理论探讨与制度检视——私主体权利实现的视角

Theoretical Discussion and Institutional Review of Penetrating Supervision from the Perspective of Realizing Private Subject Rights

近几年来,受全球经济形势与金融危机影响,我国金融体系风险事件频发,并显现出从高风险领域流向低风险领域的趋势。防范化解金融风险,守住不发生系统性风险的底线,成为第五次全国金融工作会议与十九大报告中反复强调的党和国家的重大任务与方针。为防止实体经济与金融体系风险相互交叉,防范监管套利等问题,穿透式监管成为被监管者认可的正式概念,融入法律法规、政策文件及具体监管执行之中。该理念在我国发展尚处于初期阶段,遇到了一些理论和操作中的质疑,从私主体权益视角入手,追溯其经济学与法学理论根源,明确该理念连接公法与私法、联系宏观审慎监管与微观合规监管的定位与价值取向,有助于相应制度与理论体系的构建完善。

In recent years,influenced by global economic situation and financial crisis,risk events in China’s financial system have occurred constantly and tended to shift from high-risk areas to low-risk areas.Therefore,guarding against and defusing financial risks,keeping the bottom line against systemic risks have become CPC and China’s major tasks and policies repeatedly emphasized in the 5th National Conference on Financial Work and the 19th CPC National Congress Report.To prevent risk intersection between real economy and financial system,and avert regulatory arbitrage,penetrating supervision has become a formal concept recognized by supervisors and has been blended into laws,regulations,policy documents and specific supervision implementation.Currently in its early stage of development in China,this concept has met with some theoretical and operational challenges.From the perspective of private subject rights,this study traces back to its theoretical roots of economics and jurisprudence,and clarifies target and value orientation of the concept in linking public law with private law,and macro-prudential supervision with micro-compliance supervision.