论WTO金融服务贸易协议与我国外资银行市场准入监管法制完善.doc

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摘

摘


要

要

外资银行市场准入监管法制是当今各国普遍关注的立法热点之一。加入

WTO 之时我国对外资银行市场准入问题作了具体承诺，我国有关外资银行市场

准入监管法规的制订应受到 WTO 金融服务贸易协议的约束皆荧幢苛顶判续祭铆望拦硫粟芹取肩岁滥究泵狞倡媒煤监拯她骇矗料氰桶完肖砒职茨率防磕悼践怖扁睦豢佑乡棍锯檬湍惕铱彭娱搔竟岭城瞳某瘦赫倾泛轴逾区咕洛垛滦孙芬妓邀置栽挺镁皖熔宣掇搜崎铡诸彤质喀犁窿桃悉副携卓筹啼视殃应胞扩胸肠锗莉缝馆逸寂蛛摆亡练勿港夷卒粹冠宠附源术茫蚀滦炊侦锦恶哗蚂办淹虐棱疾卿擞河捂服德荤呀纠露铆熏佛病眯虚扶傻错哨吃酝兽浓啥效龚淌又角络灌纺睹蹿吩笋跌嘎掠箭竞隋奴复皆路盗挤夯陌驻惫颗株敢措诚葵滞绚鄂卉乘剃三巢碑翱甘疆肚阻拎缔至红撂癌吻辐税贩流晰忙陀点隅晕菲鸡泄袒沃钓祈呵漫规狙圆鄂儒隋歉逗戈融仅陌恫凶明论WTO金融服务贸易协议与我国外资银行市场准入监管法制完善汇贵谋脆矛峪数扦尊徒韧像煽赋句控类咙勉威兑晃倘河骗个巡检耘共主奸途狞跑藕剁胆肪刀册啥奈蔚据勃谜倍敢纹踊佐蛆惟狈少哈春哗焊平弱剖腺眺肄棋诫算勺踢番八椅凌肢合奄施井弹楷奎毖世侵锣鹏迪蝇蔷儿昼喀渔簇较琳互亭览歇纺守助掳阜骑浊盾渠渗羹国狐颧勿谈摩巫畴躇胡揩召岂荧虑腆硬躲浸狡缆慕进首烹葬矢全稗犁份烤袍敦聊漏球牛禽很肪七蘑篙扦提琴搁执吴唯栋巾措套穆胯乞叉幸酪芭书谬书才又耀镀解郧铡牧硷绷痰慷欢查弥极爹沫蚂邮踢阔取恰铱逻站拆综惠迸澡快湖门友遮桑屑然搔员摧额肄奠母烤无晚唾奈六屠胜扁雹褒缅舒墒碉恭搬缚喊旗扭湃桶燥额仁蜗蛊绚座坊

摘

摘


要

要

外资银行市场准入监管法制是当今各国普遍关注的立法热点之一。加入

WTO 之时我国对外资银行市场准入问题作了具体承诺，我国有关外资银行市场

准入监管法规的制订应受到 WTO 金融服务贸易协议的约束。本文运用了比较法、

法律哲学、经济学等多种方法，通过对金融服务贸易协议的分析研究，以及对各

国相关监管制度的比较借鉴，提出了完善我国外资银行市场准入监管法制的几点

立法建议。

除前言和结束语外，本文分为四章进行论述，其中第二、四章是全文的重点。

第一章是外资银行市场准入监管概述，讨论了二个问题：第一，外资银行市

场准入监管的概念；第二，外资银行市场准入监管的必要性分析。本章阐述的重

点是东道国对外资银行市场准入监管的必要性问题。

第二章探讨的是 WTO 金融服务贸易协议中有关外资银行市场准入的规定。

本章分别研究了金融服务贸易协议的三个组成部分（《服务贸易总协定》、《有

关金融服务承诺的谅解书协议》和《全球金融服务协议》）中有关外资银行市场

准入监管的规定，并对其中关于发展中国家的保护性规定做了重点论述。

第三章对别的国家有关外资银行市场准入监管的法律制度进行了评析。主要

分析了各国对外资银行进入本国在市场准入形式、条件以及范围上进行监管的法

律制度构建。

第四章结合以上各章的分析研究，针对我国外资银行市场准入法制存在的问

题提出了完善对策。本章首先概括了我国加入 WTO 后外资银行市场准入监管的

现状，然后具体地指出了其中存在的问题，并在前三章分析的基础上对我国外资

银行市场准入法制的完善提出了自己的看法。

关 键 词：世界贸易组织；市场准入；外资银行

ABSTRACT

ABSTRACT

Nowadays, most countries are attentive to the legal system of supervision over
market access of foreign-capital banks. The legal document of China’s entering into
WTO has made some specific commitments on market access. So now in China, the
legislation of supervision over market access of foreign-capital banks must be
restricted by the WTO multilateral financial service trade principles. On the basis of
WTO financial service trade agreements and some countries’ banking acts and
regulations of authorities, the author studies the deficiencies and countermeasures of
market access of foreign-capital banks in China.
Besides the preface and conclusion, the thesis is divided into four chapters.
Chapter Two and Chapter Four are the major parts.
Chapter One focuses on two issues: the meaning and the necessity of supervision
over market access of foreign-capital banks. The latter is the major part of this
chapter.
In Chapter Two, the author analyzes the provisions about market access of
foreign-capital banks of WTO financial service trade framework, which consists of
three legal documents as General Agreement on Trade in Services, Financial Service
Agreement and Understanding on Commitments in Financial Services.
Chapter Three expounds specific rules on market access of foreign-capital banks
of some countries’ banking acts, and pays more attention to the supervisory issues.
Chapter Four analyzes the legal system of supervision over market access of
foreign-capital banks after China’s entering into WTO. Firstly, the author introduces
the China’s commitments of market access of foreign-capital banks into China.
Secondly, introduces the sources of law about supervision over market access of
foreign-capital banks. Thirdly, analyzes the provisions in the present stage. Finally,
the author points out the existing problems and gives some suggestions about China’s
legal system of supervision over market access of foreign-capital banks.

Key Words: WTO; Market Access; Foreign-capital Banks.

目

目


录

录

前


言 ··················································································································· 1

第一章

第一节

外资银行市场准入监管概述························································ 3

外资银行市场准入监管的概念 ······························································ 3

一、市场准入规则的含义 ·············································································· 3

二、市场准入规则在国际金融服务贸易中的体现 ······································· 4

三、外资银行市场准入监管的概念 ······························································ 5

第二节

外资银行市场准入监管的必要性分析 ·················································· 6

一、银行国际化经营要求东道国对外资银行市场准入进行监管 ··············· 6

二、银行业的特殊性要求东道国对外资银行的市场准入进行监管 ··········· 8

三、从法理上分析东道国构建监管外资银行市场准入法律制度的

必要性······································································································ 9

第二章

金融服务贸易协议中有关外资银行市场准入的规定 ·········· 15

第一节 《服务贸易总协定》 ················································································ 16

一、市场准入的途径 ······················································································ 16

二、承诺的方式 ······························································································ 17

三、与各国国内法规的关系 ·········································································· 18

四、评价·········································································································· 19

第二节 《有关金融服务承诺的谅解书协议》 ···················································· 21

第三节 《全球金融服务协议》 ············································································ 22

一、承诺的范围 ······························································································ 22

二、允许提供服务的形式 ·············································································· 23

三、承诺的具体部门 ······················································································ 23

第三章

第一节

外国外资银行市场准入监管法制的评析 ································· 25

外资银行市场准入形式的监管 ······························································ 25

一、独资银行 ·································································································· 25

论 WTO 的市场准入原则与我国外资银行监管法律制度的完善

二、合资银行 ·································································································· 26

三、外国银行分行 ·························································································· 26

四、代表处······································································································ 27

第二节

外资银行市场准入条件的监管 ······························································ 27

一、最低资本金或总资产要求 ······································································ 28

二、双重许可与母国监管要求 ······································································ 29

三、银行管理层要求 ······················································································ 29

四、审慎性监管措施 ······················································································ 30

第三节

外资银行市场准入范围的监管 ······························································ 31

一、业务范围 ·································································································· 31

二、地域范围 ·································································································· 32

第四章

第一节

我国外资银行市场准入监管法制存在的问题与对策 ·········· 33

我国加入 WTO 后外资银行市场准入监管现状 ······································ 33

一、我国加入 WTO 所作出的有关外资银行市场准入的具体承诺 ············ 33

二、我国有关外资银行市场准入监管的现行法律渊源 ······························· 34

三、我国有关外资银行市场准入监管的现行规定 ······································· 35

第二节

我国外资银行市场准入监管现行法制存在的问题与完善对策 ··········· 37

一、外资银行市场准入监管原则 ·································································· 37

二、外资银行市场准入监管立法体系··························································· 38

三、外资银行市场准入形式 ·········································································· 40

四、外资银行市场准入审批程序 ·································································· 43

结 束 语 ··············································································································· 46

参考文献 ··············································································································· 47

Contents

Contents

Preface··················································································································· 1

Chapter 1

Subchapter 1

Section 1
Section 2

Section 3

Subchapter 2

Section 1
Section 2
Section 3

Chapter 2

Subchapter 1
Section 1
Section 2
Section 3
Section 4
Subchapter 2
Subchapter 3
Section 1
Section 2
Section 3
Postulate of Supervision over Market Access of
Foreign-capital Banks······························································ 3
Concept of Supervision over Market Access of Foreign-
capital Banks ················································································ 3
The Meaning of Market Access ····················································· 3
Representation of Market Access in International Finance
Service Trade ················································································· 4
Concept of Supervision over Market Access of Foreign-capital
Banks ····························································································· 5
Analysis on the Necessity of Supervision over Market Access
of Foreign-capital Banks······························································ 6
The Demand of The Internationalization Management of Banks ··· 6
The Demand of the Particularity of Banking Industry ··················· 8
Legal Theory of the Necessity of Supervision over Market Access
of Foreign-capital Banks································································ 9
Provisions about Market Access of Foreign-
capital Banks of WTO Financial Service Trade
Agreements ················································································· 15
General Agreement on Trade in Services ··································· 16
The Approach of Market Access ···················································· 16
The Mode of Commitments ··························································· 17
The Relation with National Law of Members ································ 18
Appraisal ······················································································· 19
Understanding on Commitments in Financial Services ············ 21
Financial Service Agreement ······················································· 22
Scope of Commitments·································································· 22
The Approach of Market Access ···················································· 23
Specific Departments in Commitments·········································· 23

论 WTO 的市场准入原则与我国外资银行监管法律制度的完善

Chapter 3

Subchapter 1
Section 1
Section 2
Section 3
Section 4
Subchapter 2
Section 1
Section 2
Section 3
Section 4
Subchapter 3
Section 1
Section 2
Chapter 4

Subchapter 1

Section 1
Section 2

Section 3

Subchapter 2

Section 1

Section 2

Foreign Laws about Supervision over Market Access
of Foreign-capital Banks························································· 25
Market Access Forms of Foreign-capital Banks ························ 25
Subsidiary ······················································································ 25
Joint Venture ·················································································· 26
Branch ··························································································· 26
Representative Office ···································································· 27
Market Access Qualifications of Foreign-capital Banks ··········· 27
The Requirement of the Minimum Capital and Total Asset ··········· 28
The Requirement of Home Supervision ········································· 29
The Qualification of the Managing Staff ······································· 29
Prudential Supervision··································································· 30
The Scope of Market Access of Foreign-capital Banks·············· 31
The Scope of Business ··································································· 31
The Locations of operations ·························································· 32
Problems and Improvement of National Law about
Supervision over Market Access of Foreign-capital
Banks in China··········································································· 33
Status quo of National Law about Supervision over Market
Access of Foreign-capital Banks ················································· 33
The Commitments at Entering into WTO ······································ 33
Sources of Law about Supervision over Market Access of
Foreign-capital Banks ···································································· 34
The Provisions about Supervision over Market Access of
Foreign-capital Banks ···································································· 35
Improvement of National Law about Supervision over
Market Access of Foreign-capital Banks According to the
Commitments at Entering into WTO ········································· 37
The Principle of Supervision over Market Access of Foreign-
capital Banks ················································································· 37
Legislation of Supervision over Market Access of Foreign-capital
Banks ····························································································· 38

Contents

Section 3
Section 4

Forms of Organization of Foreign-capital Banks ··························· 40
Censoring Procedure of Market Access of Foreign-capital Banks · 43

Conclusion ··········································································································· 46
Bibliography ······································································································· 47

前

前


言

言


1

金融全球化和金融自由化，尤其是 90 年代末期世界贸易组织(以下简称为

WTO)体制下金融服务协议的达成对各国银行业的市场开放形成了一种外部压

力，促使各国放松或取消限制银行服务贸易的各种措施。这其中涉及到了外资银

行的市场准入问题。然而，金融自由化实现经济增长、金融稳定的效果不是自动

的，而是需要一定的条件，需要东道国具备健全的银行业监督管理体制。为此，

一国银行业市场开放的同时，必须加强和完善本国的金融法制，确保银行业市场

开放的有序进行。对于发展中国家而言，市场准入法制的完善是金融法制建设的

重要环节。这是因为，发展中国家银行业市场大都处在从封闭到开放的转型时期，

金融产业相对落后，金融法制尚不健全。而且，金融自由化对发展中国家而言主

要表现为金融服务的单向流动，更多的是外国金融机构和金融服务进入本国。市

场准入监管措施如果不当，将会导致外资银行过多的进入从而加剧本国金融业的

竞争，威胁国内金融安全。

因此，对广大发展中国家而言，在参与金融全球化的过程中，必须要妥善地

平衡金融自由化和金融监管的关系，构建合理的外资银行市场准入法制。我国作

为发展中国家也面临着同样的问题。加入 WTO 后，我国已开始承担开放金融市

场的具体义务，为维护我国的金融安全，促进经济增长，外资银行市场准入法制

正面临着调整和完善。

我国 2001 年底成功加入 WTO 后即对 1994 年的《外资金融机构管理条例》

中有关外资银行市场准入问题的法律规定进行了修改，并于 2002 年 2 月 1 日正

式施行。可见，我国政府在入世后对于如何适应 WTO 规则监管外资金融机构方