The difference between the crime of contract fraud and the crime of fraud and the grasp of the conflict of application

The operation of China's commercial banks is regulated by China's Constitution, civil Law, Commercial Banking Law, Accounting Law, tax law and other laws and regulations. The Law of the People's Bank of China and the Banking Regulatory Law of the People's Republic of China grant the People's Bank of China and the China Banking Regulatory Commission the right to supervise commercial banks. The financial services office under the local government is also responsible for assisting the higher level government and regulatory agencies in the management or supervision of local financial institutions. The current legal system of commercial bank supervision in China consists of three levels. The first level is the law, which mainly includes the Banking Supervision and Administration Law and the Commercial Bank Law. The second level is administrative regulations, mainly "savings management Regulations", "Financial illegal acts punishment measures" and so on; The third level is the department rules, mainly "loan general Rules", "bank card business management measures" and so on. The supervision of bad debts of commercial banks in China has gradually embarked on the track of legalization, but the legislation level is low, the legislation is rough and other problems are still prominent.

The current disposal method for bad debts in China is that commercial banks first make preparation for writing off bad debts that may occur in the future by means of provision of reserves, determine the amount of bad debts by identifying bad debts, register the balance sheet of commercial banks, and dispose of bad debts that have occurred by writing off bad debts, transferring bad assets, securitization of bad assets, etc. Reduce the impact of bad debts on commercial banks, protect the interests of commercial banks and the stability of the financial environment. However, throughout the relevant legislation of our country, combined with the reality of bad debts of our commercial banks, there are many deficiencies in the current legislation.

The legislation is rough and lacks operability

A sound legal regulation system for bad debts of commercial banks is the basis for commercial banks to deal with bad debts according to law, and it is also the standard for regulatory authorities to supervise bad debts according to law. However, with the development of global financialization and banking network, legislation in the field of bad debt supervision is still imperfect, and the existing regulations are also in jeopardy.

Although the three-level legal framework of China's commercial bank supervision has been basically formed, only the Commercial Bank Law, the People's Bank Law and the Banking Supervision and Administration Law have the highest authority. Among them, the Commercial Bank Law lays too much emphasis on the regulation of business relations of commercial banks, and does not highlight the prudential principle of commercial banks' operation. Many provisions of the Commercial Bank Law, such as the protection of depositors, the basic rules of loans and business, are aimed at the private legal relationship between banks and customers, and overemphasize the restrictions on the specific business operations of banks. Business norms are too extensive, so that China's commercial banks in the development stage of the problem of doubtful loans can not be properly and effectively solved.

The lag of legislation related to the disposal of bad debts by commercial banks directly leads to difficulties in the practice of the disposal of bad debts by commercial banks in our country. There is no specific law for the disposal of bad debts or the protection of creditors' rights by commercial banks, although there are constant judicial interpretations, such as: Some provisions in the Interpretation on the Application of the Civil Procedure Law of the People's Republic of China implemented on February 4, 2015, to a certain extent, are conducive to commercial banks using legal means to settle non-performing loans and establish a filing and registration system, which is of great help to smooth filing, but the acceleration of filing and registration does not improve the slow process of court proceedings. The speed of creditor's right confirmation has not been improved significantly, and the situation and problems in the regulation of bad debts in commercial banks have emerged in an endless stream.

When bad debts are transferred as non-performing loans of commercial banks, The behavior of asset management companies shall be subject to the relevant regulations and documents such as the Measures for the Supervision of Financial Asset Management Companies, the Regulations on Financial Asset Management Companies and the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law to Cases involving Financial Asset Management Companies' Acquisition, Management and Disposal of Assets Formed by Non-performing Loans of State-owned Banks. The protection of the creditor's rights of commercial banks in our country is mainly achieved through the Commercial Bank Law, the Company Law and the Enterprise Bankruptcy Law. Article 174 and Article 176 of the Company Law of our country have provisions on the issue of debt undertaking in the case of merger or division of enterprises. Due to the lack of pre-participation prevention mechanism, commercial banks cannot timely understand the situation of borrowers, which is not conducive to the protection of commercial banks' claims.

There are many departmental rules and regulations, and the legal efficiency level is low

A series of procedures for the identification, reserve withdrawal and write-off of bad debts of commercial banks are regulated by the General Principles of Loans, the Guidelines on Loan Risk Classification, the Measures for the Management of Bulk Transfer of Non-performing Assets of Financial Enterprises, the Measures for the Management of write-off of bad Debts of Financial Enterprises and other laws and regulations. The current system is mostly reflected in departmental rules, and the relevant legal regulations are less. The "Measures for the Management of bad Debt Write-off of Financial Enterprises" only stipulates the direction of the identification of bad debt liability of commercial banks, and the specific implementation rules are formulated by each financial enterprise. Different financial institutions have different rules for accountability, which leads to differences in accountability for bad debts. The practice span of loans from bank loans to the formation of bad debts is relatively long. It is difficult to define the actual responsibility of related credit due to the passage of time, because the long practice span may lead to changes in the policy environment. Lax lending policies, incomplete loan data preservation led to the obstruction of accountability, the movement of credit personnel and other reasons led to incomplete accountability, personnel turnover led to difficult accountability.

According to the "Measures for the Management of the Withdrawal of Bad Debt Reserves for Financial Enterprises" issued by the Ministry of Finance, in terms of the operation of the withdrawal of reserves, from the perspective of international practice, the autonomy of the provision of reserves is determined by the banks. If commercial banks need to make independent decisions, they must have a classification evaluation system for the quality of credit assets, which can make timely and accurate assessment of credit assets, plus an effective external audit and inspection mechanism. In order to independently decide the provision of reserves work, and so far, most of our commercial banks have not established their own credit asset risk classification system, in the provision of reserves will increase a lot of operational errors, resulting in risk.

As a special financial enterprise, commercial banks decide that the behavior of bank managers will interfere with the normal operation of banks. In order to pursue the current interests, some bank managers often take various means to reduce the withdrawal of various bad debt reserves. That would boost current profits, but increase the risk of bad debts. The emergence of this problem is related to the internal assessment system of banks. When profit becomes a single indicator of assessment, serious problems often occur, undermining financial security and increasing corporate risks. Since the establishment of the reserve system for doubtful accounts in our country, the use of the reserve for doubtful accounts has changed from the write-off of doubtful accounts to the transformation of preventing financial risks by consolidating asset quality, with the continuous development and improvement of the reserve system for doubtful accounts. As a financial and accounting system, the bad debt reserve system is unified by the regulations formulated by the competent authorities of the industry in the initial stage. With the completion of the shareholding system reform of China's banks and the enterprise operation, the relevant supervision system is established and tends to be improved by the competent authorities. However, the lag of the law also determines that the problems encountered in the early stage of the transformation of enterprises need to be paid attention to and the improvement of legislation. Because of the low legal level in the disposal of bad debts in commercial banks. On the one hand, the regulation on the disposal of bad debts is insufficient, on the other hand, commercial banks are prone to risk errors in the actual operation.

Commercial bank bad debts disposal related laws lack

A series of procedures for the identification, reserve withdrawal and write-off of bad debts of commercial banks are regulated by the General Principles of Loans, the Guidelines on Loan Risk Classification, the Measures for the Management of Bulk Transfer of Non-performing Assets of Financial Enterprises, the Measures for the Management of write-off of bad Debts of Financial Enterprises and other laws and regulations. The current system is mostly reflected in departmental rules, and the relevant legal regulations are less. The "Measures for the Management of bad Debt Write-off of Financial Enterprises" only stipulates the direction of the identification of bad debt liability of commercial banks, and the specific implementation rules are formulated by each financial enterprise. Different financial institutions have different rules for accountability, which leads to differences in accountability for bad debts. The practice span of loans from bank loans to the formation of bad debts is relatively long. It is difficult to define the actual responsibility of related credit due to the passage of time, because the long practice span may lead to changes in the policy environment. Lax lending policies, incomplete loan data preservation led to the obstruction of accountability, the movement of credit personnel and other reasons led to incomplete accountability, personnel turnover led to difficult accountability.

According to the "Measures for the Management of the Withdrawal of Bad Debt Reserves for Financial Enterprises" issued by the Ministry of Finance, in terms of the operation of the withdrawal of reserves, from the perspective of international practice, the autonomy of the provision of reserves is determined by the banks. If commercial banks need to make independent decisions, they must have a classification evaluation system for the quality of credit assets, which can make timely and accurate assessment of credit assets, plus an effective external audit and inspection mechanism. In order to independently decide the provision of reserves work, and so far, most of our commercial banks have not established their own credit asset risk classification system, in the provision of reserves will increase a lot of operational errors, resulting in risk.

As a special financial enterprise, commercial banks decide that the behavior of bank managers will interfere with the normal operation of banks. In order to pursue the current interests, some bank managers often take various means to reduce the withdrawal of various bad debt reserves. That would boost current profits, but increase the risk of bad debts. The emergence of this problem is related to the internal assessment system of banks. When profit becomes a single indicator of assessment, serious problems often occur, undermining financial security and increasing corporate risks. Since the establishment of the reserve system for doubtful accounts in our country, the use of the reserve for doubtful accounts has changed from the write-off of doubtful accounts to the transformation of preventing financial risks by consolidating asset quality, with the continuous development and improvement of the reserve system for doubtful accounts. As a financial and accounting system, the bad debt reserve system is unified by the regulations formulated by the competent authorities of the industry in the initial stage. With the completion of the shareholding system reform of China's banks and the enterprise operation, the relevant supervision system is established and tends to be improved by the competent authorities. However, the lag of the law also determines that the problems encountered in the early stage of the transformation of enterprises need to be paid attention to and the improvement of legislation. Because of the low legal level in the disposal of bad debts in commercial banks. On the one hand, the regulation on the disposal of bad debts is insufficient, on the other hand, commercial banks are prone to risk errors in the actual operation.

Suggestions on perfecting the legal regulation of bad debts in Chinese commercial banks

Perfect our country commercial bank bad debts related legislation

Commercial banks are special financial enterprises, the significance of risk defense is to ensure the operation of commercial banks. The credit business of China's commercial banks is regulated by the Commercial Bank Law, the Trust Law, the Negotiable Instruments Law and other laws and regulations, plus the joint supervision of the People's Bank of China and the China Banking Regulatory Commission. In terms of loan risk prevention and control of commercial banks, the CBRC mainly monitors the capital adequacy ratio and other data indicators of commercial banks with reference to the Basel Agreement. In the existing system, laws and regulations are used as guidance or framework content to restrict, and the People's Bank of China is specifically responsible for regulating and guiding the payment settlement and management links. Laws and regulations have little effect on the actual supervision of the credit business of commercial banks. Due to the lack of relevant legislation, the People's Bank of China and the financial supervision department have multiple supervision, and commercial banks are subject to the policy documents of the two departments in the specific credit business, which is not conducive to the development of the credit business of commercial banks in China and does not conform to the concept of governing the country according to law. In practice, all kinds of policy documents are only regulated for a certain business.

In today's development of commercial banks, banking business directly affects the economic environment and promotes GDP growth, the innovation ability of commercial banks is gradually enhanced, and the rapid development of the financial industry is moving toward mixed operation. It is obvious that the development of commercial banks can no longer be met by only using departmental regulations to manage the business of commercial banks. It is urgent to establish a complete set of legal regulations for risk prevention and control of commercial banks. From the approval of commercial banks' loan business to the disposal of bad debts, the market norms of financial derivatives carry out risk prevention and legal regulation. In the operation of bad debts in commercial banks, the management principles and objectives, legal effect and liability system of bad debts should be clarified and standardized in the form of laws, and the backward situation and provisions that are not conducive to the operation and handling of bad debts should be abolished in the form of special laws, so as to raise the level of social attention and effectively safeguard the legitimate rights and interests of creditors and the security of state-owned assets.

Improve the legislative level and operability of commercial bank bad debt regulation

The provisions on the disposal of bad debts in the Law of the People's Bank of China, the Commercial Bank Law and the administrative regulations formulated by The State Council shall be carefully improved and amended, and the specific operational procedures for the disposal of bad debts by commercial banks shall be stipulated by the rules and regulations of the People's Bank of China. In terms of improving the operation of the financial supervision legal system, the Standing Committee of the National People's Congress, The State Council and the People's Bank of China should increase the number of provisions and make detailed provisions on the operation of bad debts of commercial banks when formulating and revising the supervision system, so as to facilitate the operation of bank staff and supervisors and ensure the smooth operation of bad debts of commercial banks, and truly ensure that low-level laws and regulations obey high-level regulations. When the content of the two is inconsistent or in conflict, the lower order of the law is subject to the higher order of the law.

Scientific formulation of commercial banks bad debt identification measures. Commercial banks need to study and formulate Measures for the Identification of Liability for Non-performing Loans, clarify accountability procedures and methods, carry out accountability work in accordance with laws, establish an accountability organization mechanism, objectively and fairly analyze the causes of bad debts, define responsibilities, and ensure the fairness and authority of liability identification. The object of accountability should cover all the personnel in the credit business, conduct analysis around each link, seek truth from facts, and deal with the loan losses caused by decision-making errors and fraud in strict accordance with the relevant provisions. For the bad debts caused by changes in external objective environment, we should carry out a specific analysis, and should not blindly investigate the responsibility and affect the enthusiasm of credit personnel. Further improve the responsibility investigation mechanism for bad debts, for the frequent movement of employees, bad debts generation time span brought difficulties to the responsibility investigation, we must further improve the responsibility investigation mechanism.

In the Measures for the Management of Writing off Bad Debts of Financial Enterprises, it should be clearly stipulated that each financial institution will regularly investigate the situation that is identified as having subjective responsibility, and that the responsible persons due to post changes will be collected and reported to the banking regulatory department in a timely manner, and the banking regulatory department will be responsible for supervising their units to investigate the responsibilities, especially for the responsible persons who have served as senior executives of financial enterprises. The banking regulatory department has the right to request the financial enterprise to prosecute and deal with the responsible person according to the seriousness of the case. From the current identification and investigation system of commercial banks' liability for bad debts, when the regulatory authorities find that the punishment for liability identification is light, relatively rough, and not feasible financial enterprises through supervision and inspection, they should increase their rectification efforts, so that enterprises can have legal basis for the identification of liability for bad debts. As an important form of democratic supervision, the publicity system can enhance the transparency of the accountability, reflect the fairness and legality of the accountability work, ensure the efficiency and integrity of the accountability work, and play a warning role. Financial enterprises can adopt internal publicity in the development of the accountability publicity system.

To formulate the non-performing assets disposal law of China's commercial banks

In order to create a good market environment for the disposal of non-performing assets of commercial banks in our country, and to create legal status for commercial banks and specialized institutions for the disposal of non-performing assets, it is urgent to establish a law to solve the problems encountered in the long-term disposal of non-performing assets of commercial banks. The Law on the Disposal of Non-performing Assets of Commercial Banks has been promulgated to regulate the market-oriented operation of non-performing assets, investigate the liability of non-performing assets, and standardize different entities involved in the disposal of non-performing assets. The high level method can improve the operability of the disposal of non-performing assets, resolve the non-performing assets formed in the normal business activities of commercial banks, curb the occurrence of bad debts of commercial banks, and ensure the normal operation of commercial banks.

Summary: The legal regulation of commercial banks' bad debts is an important prerequisite for the sustainable operation and stable development of commercial banks. In the course of practice, the supervision system of commercial banks' bad debts has been continuously improved. However, with the rapid changes in economic development and the products of commercial banks, relevant legislation, judicature, national policies and financial supervision should continue to develop in a comprehensive and scientific way, summarize the system construction and improvement of legal regulations on bad debts of commercial banks, and put forward suggestions for ensuring the smooth operation of bad debts of commercial banks and improving the supervision of non-performing loans of commercial banks.

At present, with the gradual establishment of various legal systems in the market economy, it is still of great significance to improve the construction of legal systems. To study the non-performing assets and the operation mechanism of banks in the world's mature market economies, legislation is adopted first, and the governments of all countries have corresponding legal basis before taking effective administrative assistance. Timely revision and supplement. Due to the historical factors of our country, in the early period of reform and opening up, government administration relied much more heavily on policy than law. In the field of bad debts disposal of commercial banks, such as bad debts of commercial banks are disposed of as a way of transferring non-performing assets, during the establishment and operation of financial asset companies, problems such as insufficient disposal authority of special institutions, lack of legal basis for disposal, and incoordination with relevant laws and regulations will inevitably occur in actual operation. Taking the non-performing loans of commercial banks as securitization of non-performing assets as another example, asset securitization is a new financial innovation tool, which has significant effects in dispersing and resolving financial risks, reducing the financing cost of commercial banks, and enhancing the liquidity of credit assets. However, due to the complicated legal relations involved in the process of asset securitization, corresponding laws are needed to regulate it. The 2017 National Financial Work Conference emphasized that "improving the financial legal system in line with China's national conditions", as the key content of financial work, has important practical significance and forward-looking. In the process of perfecting the legal regulation of bad debts of commercial banks in China, it is necessary to coordinate the relationship between law and policy, and the government's financial supervision gradually realizes the transformation from policy to law.