金融危机干预措施的合宪性审查——英美处置破产银行及启示

The Constitutional Review of Government Measures for Financial Crises——in Case of Failed Bank Resolution Regime in the UK and US

金融危机干预措施为了维护金融稳定,然而危机干预措施打破了公共机关间的权力平衡,损害了被干预机构利益关联方的财产权和程序性权利。重塑危机后的宪法秩序需要考察危机产生原因,危机干预措施的影响。平时状态下的司法审查标准和强度无法适应金融危机时的需求,事后的危机干预措施的合宪性审查成为了保障基本权利的最后屏障。然而司法机关对危机干预措施审查面临诸多困境,危机后的监管改革和监管文化的变化导致司法机关难以有效约束监管机构的干预措施。

Government measures for fi nancial crises aim to protect fi nancial stability. However, these measures may change the balance among public authorities and damage the property rights and procedural rights of interested parties of the intervened institution. Causes of fi nancial crises and eff ects of government measures should be investigated in order to restore constitutional order after fi nancial crises. The standards and intnensity of judicial review under normal state can not be suitable for financial crises, constitutional review of the crisis intervention measures afterwards has become the last resort for fundamental rights. Unfortunately, judicial authorities confront many dilemmas in reviewing crisis intervention measures. Regulatory reforms and changes in regulatory culture after the financial crises increase the difficulty for judicial authorities eff ectively to restraint intervention measures of regulatory governments.