金融法(双语版)课件全书电子教案课件.pptx

,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,第一,章 金融法基础理论,一、金融法的学习方法,二、金融法的渊源和体系,三、金融法监管制度,四、金融危机以来金融法的发展,第一,章 金融法基础理论,一、金融法的学习方法,1.,金融法比较研究的动因,金融全球化（资本流动全球化、金融机构全球化、金融市场全球化）,2.,比较法基础理论,比较的方式；比较的作用；比较法的操作（搜集资料；比较分析；批判评价）,第一,章 金融法基础理论,一、金融法的学习方法,3.,中美金融法比较研究,立法理念的比较；立法技术、具体法律规则的比较；司法体制在金融法中的作用比较（判例法与案例指导制度）,4.,美国判例的阅读方法,案件名称及索引号；案件事实（,facts,）；案件当事人的诉由及诉求（,cause of action,；,claims,）；诉讼程序历史（,procedural history,）；争议焦点（,contentions,）；推理分析（,reasoning,）；判决（,judgment,）,第一,章 金融法基础理论,二、金融法的渊源和体系,1,.,中国金融法,成文法制度：金融法律、金融法规、金融规章及规范性文件；司法解释；国际条约、协定；国际惯例,基于分业经营的立法：中央银行法律制度、商业银行法律制度、信托法律制度、证券法律制度、保险法律制度证券投资基金法律制度、金融衍生产品法律制度等,2,.,美国金融法,Statute,v.,Case,law,Federal,law,v.,S,tate,law,第一,章 金融法基础理论,三,、金融监管制度,1,.,中国“一行三会”监管体制,分业监管：中国人民银行、中国银监会、中国证监会、中国保监会,分工与合作：各司其职；协调合作,2.,美国金融法,Dual,and,Multiple Financial Regulation System:federal regulator FRS,OCC,FDIC,NCUA,SEC,CFTC,NAIC,第一,章 金融法基础理论,三,、金融监管制度,3.,案例,:,Financial,Regulation:Recent Crisis Reaffirms the Need to Overhaul the U.S.Regulatory System,Financial regulatory system is formed and changed in response to financial crisis,Financial market development challenges the existing financial regulatory structure,Limitations of the U.S.financial regulatory structure:,(1)having multiple regulators results in inconsistent oversight;,(2)lack of oversight exists for some financial sectors(e.g.,derivatives,products,);,(3)gap in the oversight of significant market participants;,(4)lack of appropriate resolution authorities for financial market institutions;,(5)lack of a focus on systemwide risk;and so on.,第一,章 金融法基础理论,四,、金融危机以来金融法的发展,1,.,国际金融监管改革,宏观系统层面,中,观市场层面,微观机构层面,2.,中国金融改革,参与国际监管,系统性风险应对,投资者保护,金融,监管跨部门协调与合作,第一,章 金融法基础理论,四,、金融危机以来金融法的发展,3.,美国,金融改革,Refine regulatory structure,Strengthen micro-regulation on financial institutions,Establish orderly resolution and bail-in of financial institutions,Improve financial market regulatory system,4.,案例：,Progress of Financial Regulatory Reforms,Bank capital and liquidity standards,Addressing the moral hazard risk associated with SIFIs,Supervisory intensity and effectiveness,OTC derivatives reforms,Principles for reducing reliance on CRA ratings,第,二,章 中央银行法律制度,一、中央银行的组织机构,二,、中央银行的业务,第二章 中央银行法律制度,一、中央银行的组织机构,1.,中国人民银行,法律依据：,中国人民银行法,机构性质：政府机构、独立性、对全国人大负责,组织结构：,领导机构,咨询机构,总行内设机构,分支机构（垂直领导体制）,其它机构,第二章 中央银行法律制度,一、中央银行的组织机构,2,.,美国联邦储备系统（,federal reserve system,）,Legal basis:Federal Reserve Act of,1913,De facto central bank:not a single bank but a system;privately owned,(1)Board of Governors of the Federal Reserve System,(2)Federal Open Market Committee,(3)Federal reserve bank and its member banks,(,4)Consumer Financial Protection Bureau,第二章 中央银行法律制度,一、中央银行的组织机构,3.,案例,Federal Reserve Act of 1913,(1),Federal Reserve Districts,determination,of Federal,Reserve,cities and Federal,Reserve,districts;,national,bank shall become a member bank of the Federal Reserve System by subscribing and paying for stock in the Federal Reserve bank of its district;,the,shareholders of every Federal reserve bank shall be held individually responsible,equally and ratably,and not one for another,for all contracts,debts,and engagements of such bank,(2)Federal,Reserve,Banks,one,Federal reserve,bank organized for one,Federal Reserve,districts;,a corporate body with general corporate powers;,to commence business only upon authorized by Comptroller of the Currency,第二章 中央银行法律制度,一、中央银行的组织机构,3.,案例,Federal,Reserve Act of,1913,(3),Board of Governors of the Federal Reserve System,The Board shall be composed of seven members,to be appointed by the President,by and with the advice and consent of the Senate;,The,Board,shall,have power to levy semiannually upon the Federal reserve banks,in proportion to their capital stock and surplus,an assessment sufficient to pay its estimated expenses and the salaries of its members and employees;,No,member of the Board,shall,be an officer or director of any bank,banking institution,trust company,or Federal Reserve bank or hold stock in any bank,banking institution,or trust,company.,第二章 中央银行法律制度,二,、中央银行的业务,1.,中国人民银行,原则性规定：,（,1,）,出于,执行货币政策和管理金融的需要，可以开展一系列的,业务,（与职能相关）；（,2,）,在,开展相关业务时，应当严格按照法律、行政法规的规定进行，并贯彻国家的,方针政策,（贯彻法律政策）；（,3,）,应当,遵循市场经济活动的规则，不得享有业务经营的,特权,（地位平等性）,业务特点,：,（,1,）以有利于履行职责为原则，业务活动开展不以营利为目的，而是通过提供业务服务来稳定货币、稳定金融，调节宏观经济的发展；（,2,）业务对象特定，主要是商业银行和其他金融机构，不经营一般商业银行业务，不直接对一般企业和个人开展业务,。,可以从事的业务范畴：,既包括贷款、再贴现、证券买卖、保管金银及外汇储备等资产业务，也包括货币发行、代理国库、集中存款准备金、占用清算资金等负债业务，还包括代理发行和兑付国债、清算业务、金银管理业务等既不形成资金来源，也不运用自己的资产但属于职责范围内的服务性业务,。,禁止从事的业务,：,（,1,）不得对政府财政透支，不得直接认购、包销国债和其他政府债券；（,2,）不得向地方政府、各级政府部门提供贷款；（,3,）不得向非银行金融机构以及其他单位和个人提供贷款，但国务院决定中国人民银行可以向特定的非银行金融机构提供贷款的除外；（,4,）不得向任何单位和个人提供担保,。,第二章 中央银行法律制度,二,、中央银行的业务,2.,美国联邦储备系统,Bank for the Government,:,Treasury,Services-the Federal Reserve serves as a fiscal and depository agent for the United States Government.In this role,the Reserve Banks perform a variety of services for the U.S.Department of the Treasury,other Federal Agencies and government-sponsored enterprises.,Bank for other banks:,FedLine,Access Solutions,-provide financial institutions with direct access to Federal Reserve Financial Services information and critical payment services,.,Account,Services,-offers a variety of reports and inquiry services that provide a reliable,complete and timely source of information about entries debited or credited to an institutions account,.,Check,Services,-offer customers a suite of electronic and paper check processing options to support all of the customers needs.,FedACH,Services,-provides financial institutions with efficient,low-cost batched payment services that enable an electronic exchange of debit and credit transactions through the Automated Clearing House(ACH)network,.,FedCash,Services,-the Federal Reserve Banks offer FedCash Services to help ensure that depository institutions have sufficient supplies of currency and coin to meet public demand,.,Fedwire,Services,-the premier electronic payments and securities transfer services that banks,businesses and government agencies rely on for mission-critical,same-day transactions.,National,Settlement Service,-a multilateral settlement service owned and operated by the Federal Reserve Banks,offered to depository institutions that settle for participants in clearinghouses,financial exchanges and other clearing and settlement groups.,第二章 中央银行法律制度,三,、案例,American Bank&Trust Co.v.Federal Reserve Bank of Atlanta,Facts-,(1)The,plaintiffs are not members of the Federal Reserve System,and many of them have too small a capital to permit their joining ita capital that could not be increased to the required amount in the thinly populated sections of the country where they operate.An important part of the income of these small institutions is a charge for the services rendered by them in paying checks drawn upon them at a distance and forwarded,generally by other banks,through the mail.The charge covers the expense incurred by the paying bank and a small profit,.,(2)The defendants intend,to accumulate checks upon the country banks until they reach a large amount,and then to cause them to be presented for payment over the counter or by other devices detailed to require payment in cash in such wise as to compel the plaintiffs to maintain so much cash in their vaults as to drive them out of business or force them,if able,to submit to the defendants scheme.,Procedural history-,(1,)The,district court dismissed the bill for want of equity,and its decree was affirmed by the circuit court of appeals,.The supreme court reversed the decree.,(2),At the re-trial,a,n injunction was,granted against inclusion of the,plaintiffs,names on the par list,but t,he relief sought,by the plaintiffs,was in all other respects denied.,The decree was affirmed by the circuit court of appeals and The supreme court.,第二章 中央银行法律制度,三,、案例,American Bank&Trust Co.v.Federal Reserve Bank of Atlanta,Parties contentions-,Plaintiffs,:,(1),in pursuance of a policy accepted by the Federal Reserve Board,the defendant bank has determined to use its power to compel the plaintiffs and others in like situation to become members of the defendant,or at least to open a nonmember clearing account with defendant,and thereby,under the defendants requirements,to make it necessary for the plaintiffs to maintain a much larger reserve than in their present condition they need.This diminution of their lending power,coupled with the loss of the profit caused by the above mentioned clearing of bank checks and drafts at par,will drive some of the plaintiffs out of business and diminish the income of,all.,(2)the,proposed conduct will deprive the plaintiffs or their property without due process of law,contrary to the Fifth Amendment of the Constitution,and that it is ultra vires,.,REQUEST:,The bill seeks an injunction against the defendants collecting checks except in the usual way,.,Defendants,:,(1)The defendants say that the holder of a check has a right to present it to the bank upon which it was drawn for payment over the counter,and that,however many checks he may hold,he has the same right as to all of them,and may present them all at once,whatever his motive or,intent.,Eg.,whether a mortgagee would be prevented from foreclosing because he acted from disinterested malevolence,and not from a desire to get his money?,第二章 中央银行法律制度,三,、案例,American Bank&Trust Co.v.Federal Reserve Bank of Atlanta,Courts reasoning-,1921,judgment-,(1)not,necessary to our decision the question of the defendants powers,and,assuming that they act within them,consider only whether the use that,according to the bill,they intend to make of them will infringe the plaintiffs rights,.,(2),In ordinary cases,a bank that receives deposits to be drawn upon by check,of course,authorizes its depositors to draw checks against their accounts,and,holders of such checks to present them for payment.But in the present case,looked at from either side,it cannot be so.The interests of business also are recognized as rights,protected against injury to a greater or less extent,and in case of conflict between the claims of business,on the one side,and of third persons,on the other,lines have to be drawn that limit both.,(3),it is not enough to refer to the general right of a holder of checks to present them,but it is necessary to consider whether the collection of checks and presenting them in a body for the purpose of breaking down the petitioners business as now conducted is justified by the ulterior purpose in view.,Conclusion-,Decree,reversed.,第二章 中央银行法律制度,三,、案例,American Bank&Trust Co.v.Federal Reserve Bank of Atlanta,Courts reasoning-,1923 judgment-,BACKGROUND-,At the re-trial,the defendants,disclaimed any intention of demanding payment in cash,when presenting checks at the banks,and averred its willingness to accept payment in drafts,either on the drawees Atlanta correspondent or on any other solvent bank,if collectible at par.,A,n,injunction was,granted against inclusion of the,plaintiffs,names on the par list,but t,he relief sought,by the plaintiffs,was in all other respects denied.,(1),Whether on the undisputed facts plaintiffs were entitled to additional relief is the main question for decision.,(2,)Federal Reserve Banks,are,authorized by Congress to collect for other Reserve Banks,for members,and for affiliated nonmembers,checks on any bank within their respective districts,if the check is payable on presentation and can in fact be collected consistently with the legal rights of the drawee without paying an exchange charge.Within these limits Federal Reserve Banks have ordinarily the same right to present a check to the drawee bank for payment over the counter,as any other bank,state or national,would have.,(3)The findings of fact negative the charges of wrongful intent and of,coercion by the defendents.Country,banks are not entitled to protection against,legitimate competition,.Their loss here shown is of the kind to which business concerns are commonly subjected when improved facilities are introduced by others,or a more efficient competitor enters the field.,Conclusion-,Decree affirmed,.,第二章 中央银行法律制度,三、中央银行的货币政策,四、中央银行的监管职能,第二章 中央银行法律制度,三、中央银行的货币政策,1.,中国人民银行,法律依据：,中国人民银行法、中国人民银行货币政策委员会条例,政策目标：保持货币币值的稳定，并以此促进经济增长,制定执行机构：中国人民银行及其内设货币政策委员会,货币政策工具：指中央银行为实现货币政策目标所运用的策略手段,第二章 中央银行法律制度,三、中央银行的货币政策,1.,中国人民银行,货币政策工具,：,(1)要求银行业金融机构按照规定的比例交存存款准备金。,(2)确定中央银行基准利率。,(3)为在中国人民银行开立账户的银行业金融机构办理再贴现。,(4)向商业银行提供贷款，即再贷款。,(5)在公开市场上买卖国债、其他政府债券和金融债券及外汇，即公开市场业务。,(6)国务院确定的其他货币政策工具。,第二章 中央银行法律制度,三、中央银行的货币政策,2.,美国联邦储备系统（,federal reserve system,）,formulating and executing institution:,federal reserve system,three ways to carry out the monetary policy:,(1)adjust statutory rate of reserve fund,(2)adjust the discount rate,(3)open market operation,第二章 中央银行法律制度,三、中央银行的货币政策,3.,案例,First Bank&Trust Co.v.Board of Governors of Federal Reserve System,F,acts,(1),Prior to 1980,First Bank was a nationally chartered bank,also a member of the Federal Reserve.While,a state charter was obtained,on,March 3,1980,and the same day,the Bank withdrew its reserve balances from the Federal Reserve Bank of Cleveland,relinquishing its stock in the system.,(2)In its pertinent parts,the Monetary Control Act of 1980(MCA),extended reserve requirements to all banks in the United States whether the bank was a member of the Federal Reserve System or not.And the pertinent provisions of the MCA,as finally passed and signed by the President,provide that non-member banks shall be allowed an eight-year phase-in of the mandatory reserve requirements.Member banks,however,were not given any phase-in period and had to maintain reserves in accordance with federal regulations as always.,第二章 中央银行法律制度,三、中央银行的货币政策,3.,案例,First Bank&Trust Co.v.Board of Governors of Federal Reserve System,F,acts,(3)On June 13,1980,First Bank petitioned the Board for a determination that it had withdrawn from membership prior to July 1,1979.On July 19th,the bank petitioned a second time seeking in the alternative a determination that the financial hardship exception as laid out in the regulations was applicable to it.Both petitions were denied on September 26,1980.,Plaintiff,s request:,In its complaint plaintiff seeks a declaration that 12 U.S.C.461(b)(8)(D)(i)violates its substantive due process rights as guaranteed by the Fifth Amendment of the Constitution.,第二章 中央银行法律制度,3、案例,First Bank&Trust Co.v.Board of Governors of Federal Reserve System,Courts reasoning-,(1)The Court finds,however,that even if it were said to be retroactive,there is a rational basis for its retrospective effect.This is all that is required for upholding the legislation under the Fifth Amendments Due Process clause.,(2)It is clear from the legislative history behind the MCA that one of the principle purposes of the Act was to equalize the inequities between the amount of reserves required to be kept by non-member banks vis-a-vis member banks.Pursuant to the intent behind the MCA,it is clear,that,Congress had a rational purpose in picking a date prior in time to the Acts enactment for determining which banks would be deemed memb