银行风险处置的公共选择考量与制度建构

The Public Choice Consideration and Institution Building in Bank Resolution

金融危机后,各国在银行风险处置的理念和处置措施上已取得一定共识,但由于国情差异,各国相应具体制度设计有所不同。历史上的金融危机在相当程度上是监管俘获的产物,银行风险处置立法可以缓解监管俘获问题,但同时也应充分意识到处置机构之间可能涉及机构竞争与利益冲突问题。我国目前的《商业银行法(修改建议稿)》与《金融稳定法(草案)》在部分吸收域外风险处置措施的同时,制定了银行风险处置机制,但这些规定仍存在一定缺陷,并可能影响相应制度建构的客观实现效果。路径依赖和公共选择理论可以作为理论工具,分析我国银行风险处置的立法模式选择和深层次的制度考量。从形式与实质双重角度而言,立法模式、处置机构的权力配置、不同主体间的利益平衡,涉及不同主体在风险处置规则制定过程中的参与度、力量对比并且影响条款的最终内容。故此,应通盘考虑银行风险处置制度的建构与立法目标,以更好地实现制度价值。

The current bank resolution legislation in China is fragmented and there is no unitary bank resolution regime.As a result,most bank resolution rules are placed in different banking laws and regulations in a fregmented way and no consensus can be reached on the roles of different resolution authorities in bank failures.On the other hand,an international consensus has been reached on the philosophy of bank resolution and related resolution measures.However,due to the difference in the bank system,regulatory regime and political environment,different countries have established different bank resolution regimes.The current financial system and financial regulatory system in China play a significant role in establishing the bank resolution regime.Bank resolution legislation involves the gaming between different interest groups.Both the path dependence theory and the public choice theory reveal the possibility of a bank resolution regime violating public interest in the name of public interest as a result of the undue influence of interest groups in the legislative process.Financial crises in history have been the results of“agency capture”.Even though current bank resolution regimes in most jurisdictions have alleviated the traditional problem of“agency capture”,conflicts of interest among resolution authorities should not be neglected and efforts should be made to reduce the undue influence on bank resolution legislation.The Proposed Amendment to the Commercial Banking Law of 2020 and the Draft Financial Stability Law of 2022 partly absorb the sophisticated philosophy and resolution measures of foreign jurisdictions,but do not change the situation of fragmented bank resolution legislation.Path dependence and public choice are the main reasons for this legislative choice.Different interested parties participate in the bank legislation process and try to influence the bank resolution provisions.The current bank resolution mechanism in China reflects the tendency of giving priority to public interests over private interests,taking the marketization of bank resolution as an important principle and granting broad resolution powers to relevant resolution authorities.Compared with the other interested parties,resolution authorities have special knowledge and administrative resources,leading to their comparative advantages in bank resolution legislation.As a result,other interested parties are unable to play their due roles in the legislation and obtain effective safeguards from the relevant legal provisions.The existence of multiple resolution authorities necessitates a reasonable division of resolution powers among resolution authorities.Institutional competition among different resolution authorities may undermine the establishment of an effective bank resolution regime.Therefore,bank resolution legislation should reduce the undue influence of resolution authorities and private interested parties.Furthermore,an effective bank resolution system should also balance various conflicting interests in the bank resolution process and provide a minimum safeguard for interested parties,so as to avoid acts of risk aversion of interested parties before the initiation of bank resolution proceedings and achieve financial stability.