Reflection on the legal and policy dilemma USA financial supervision of

Reflection on the legal and policy dilemma USA financial supervision of

-- Also on China's financial supervision enlightenment

 

 

 

Key word:Financial crisis; supervision overlapping; vacuum supervision; nepotism; supervision

 

   Reflection on the USA financial supervision predicament that, over the years "and" financial market share is equivalent to enhance the market competitiveness of the myth, the American into the invalid supervision predicament. At the same time, American current federal and state multiple supervision system, supervision of high cost, low efficiency, regulatory overlap and vacuum supervision, "regulatory race to the bottom" and "regulatory arbitrage" many problems. In addition, too outdated and can not adapt to the financial regulations, the virtual economy and financial supervision departments repeatedly by special interest groups to capture, but also directly caused the supervision of disaster. In view of this, China must get out of the financial law "aesthetic (USA) trap doctrine", abide by the financial supervision and regulation to protect investors the value basis, a thorough reflection and reconstruction does not adapt to the virtual economy financial regulations, and the use of "political wisdom stage management" to improve the framework of financial supervision, financial supervision rules for real reduction will market and technical rules, rather than personal and political operation.

       Primer

      For decades, "Wall Street" (America Wall Street) as a global financial market center and example, leads the development direction of the world's financial markets. The financial supervision mode America and related legal system, but also has been emerging countries to study and emulate, and China is no exception, outstanding performance is, our "company law" and "Securities Law" the revised several times, there is a strong "only 'beauty' Doctrine" complex.

      However,2008Year started USA, sweeping the world and have a significant impact on the real economy and financial crisis[1], caused a rethink the painful: always with rules, supervision strict fine known American, over the years is brewing in such great financial predicament! America competitive financial markets and regulatory effectiveness which is facing enormous challenge and question. In fact, in recent years, American regulators, academics and the industry was also much reflection.2008After the outbreak of financial crisis, America established "the president's working group on financial markets ("ThePresident'S Working Group on Financial Markets, PWG) for many weaknesses in the global financial markets and financial institutions, to conduct a comprehensive reflection, and supervision American evoked, enlarged or failed to alleviate the financial crisis of the law and policy, detailed carding. On this basis, the working group put forward some countermeasures and suggestions.

      In the financial globalization, the global heat with the cold today, the USA reflections and comments are fine for the examination, thought that China's financial supervision system arrangement to provide mirror, no doubt at. A, bigger does not equal to do strong: American competitiveness of financial market and the effectiveness of supervision for

      The effectiveness of the pursuit of regulatory is the common goal of the national regulatory authorities of the financial market, because generally speaking, the effectiveness of financial supervision is the core and key competitiveness. This proposition may seem simple, but it contains two tricky question: first, high and low market competitiveness of a country's financial, it should be how to measure? Second, the number of supervisors of a country's financial markets need actually, can not only avoid the vacuum of supervision, and prevent excessive regulation, finally realize the supervision effectiveness?

      Early in the2006Years, the mayor of New York CityMichael BloombergAnd New York SenatorCharles SchumerIn the "Wall Street journal" (i.e. Wall Street Journal) wrote, called saying "learn from London, save New York".[2]In this paper, two senior figures published at the time seemed sensational speech. They say, in the field of financial service, USA is losing its competitive advantage. At the same time, a lot of reports and academic circles to complete, also in the financial services sector, especially in the field of securities and investment banking after American market share has concluded, is the loss of America market advantage, but if we do not take effective measures, this trend will be further intensified.[3]

      For example,2007Statistical data in the display, American two major exchange in an initial public offering (IPO) occupies global market share, from2000Years of48.5% drop to2006Years of17.6%, far from the UK and Chinese. In the world, the dominant position USA is losing its equity market.[4]

      In view of this, scholars have put forward a series of reform American financial services regulatory system, including creating a similar to the UK Financial Services Authority (Financial Services Authority, FSAA single regulator).

      No doubt, these results caused many concerns and financial media America policy. For their American financial regulation could damage the country's financial market competitiveness concerns, and even affect the court's judicial policy. For example, in theStoneridge Investment Pas-rtners, LLCV.ScientificAAtlanta, IncA case[5]In justiceKennedyDismissed the plaintiff quoted "reliance interest" in "scheme liability" (Scheme liabilityThe concept of). The court that this expansion explanation will bring negative effect to some markets: for American securities law do not know many oversea company, will be under the authority to give up the business, which will further reduce the USA securities market competitiveness.

      However, in the discussion of American losing its competitiveness of financial market, the reviewers for what "competitiveness", actually did not agree. Generally speaking, a financial market "competitiveness", there are mainly two points:

      The first view is the "financial market share theory". In this view, should be the statistical register occupied in the financial institutions headquartered in the America or America global market share, and compare it with other countries for comparative analysis.[6]This view is dominant in the near future. It is based on the following logic: if American lost the largest market share of the financial services market, also shows that American national power and prestige diminished, and will lose more jobs in the financial services sector.

      The "financial market share on the Usa Inc" in the global financial services market competition, competition in the country under the grand context between. Intuitively, the financial market carrying the poverty reduction, improving living standards and expanding employment responsibilities.[7]Therefore, expanding the share of its share in the global financial market, it helps to achieve this goal in the short term.

      Another view is "market effective competition theory". This view does not emphasize American occupies in the global financial market share, the ideal mode and pay more attention to USA financial market and the competitive gap. According to this view, the financial market is the supply and demand a lot of compete places on the quality and price of financial products, institutional arrangements of the financial market of a country should promote competition between financial product provider.[8]If American competitiveness of financial market is low, investors or financial services customers may face "quality price" of financial markets, the final will be harmed, the competitiveness of the financial market will also be diminished.

      Two kinds of different understanding of "competitiveness" in financial markets, leading to a corresponding "policy prescription" will also be greatly different its interest. For example, restrictions on foreign insurance companies to enter the USA market regulations, in the short term can help America insurance company to gain a greater share of the global market, so as to meet the "financial market" theory demands. But in the long term, it will reduce the effectiveness of competition America domestic insurance market, then the loss and America customers, because they buy insurance service selection will suffer depression. In addition, other countries will take the limit American insurance companies to enter the market way to take revenge.

      Indeed, the competitiveness of financial market measure is not easy. Some scholars believe that, America government in recent years to promote financial market share of legal and policy attention especially, and other targets are often ignored, but in fact both be closely related and mutually dependent, complement each other. For example, complete deregulation in the financial field, may be in short-term inside increase American securities company's market share, but also can induce the fraud behavior of investors. And because American50% of households hold securities, if allowed to securities fraud frequently, will destroy the family support and child education program.[9]In the long run, it will bring great damage to the USA economic. Therefore, the market share does not in itself "a pretty cover 100 ugly", and therefore can not be America financial services law must be a ready-made panacea in the first place.

      Finally, America scholars in a certain level, reached the following consensus: enhance the America in global market share and competitive position, is a target of financial supervision, the following basic value should not be at the expense of financial regulation: first, public investor protection laws and regulations: contribute to this goal, should be those who completely rational and informed investors, depositors and policy holders will choose to apply to avoid fraud rules;[10]Secondly, the negative externality caused by eliminating the financial failure: laws and regulations to this goal, including prudential supervision to ensure that financial institutions have enough liquidity to meet their obligations to investors, depositors and policyholders;[11]Third, to promote the implementation of country specific political and economic objectives: to this goal of regulations including some limited financial group, commercial activities, avoid business combination rules; fourth, eliminate crime and international terrorism: contribute to this goal of regulations including anti money laundering supervision regulations.

      As the financial market is difficult to a dollar standard, the effectiveness of financial regulation is also difficult to measure. How many regulators to implement effective supervision on financial market? In theory, this problem does not seem to be difficult, if the marginal revenue of government regulators have added more than the marginal cost, it shall continue to increase until regulators, the marginal return to less than marginal cost. But in fact, it is extremely difficult to measure. If the "cost of regulation" easier terms,[12]"Regulation of income" is extremely complicated, it is a multi-dimensional concept. Moreover, because the value orientation of different countries on financial market, strengthen the financial supervision is not necessarily bring the social net revenue. In a dictatorship, the primary function of the public authorities is to grab the public wealth, in this case to strengthen supervision on social welfare but harmful. Over the years, although USA surface to protect the interests of investors in a very important position, is a high degree of opening widely recognized as the financial markets, but America financial supervision still suffered by the special interest group "looting" of the accused.

      Scholars have pointed out, "the public interest" ( Public-regarding interests), is not completely equal to "public interest" ( Publicinterests). But regulators are often in the "public interest" in the name, for the protection of special interest groups. For example,SECTo resist the influence of special interests in terms of sleaze, the enactment of rules often for executives and investors have rejected, namely for example.[13]In addition, the Congress under the public opinion pressure, must show a positive attitude is to resolve the current problems in order to pacify the people, but also to the long-term interests of the lack of consideration.[14]Finally, even worse, once the Congress passed an inefficient rules, because of the damage is "hidden", is unlikely to have enough public attention to urge Congress to revoke or modify this rule.

      The financial crisis, in addition to expose American financial supervision and the defect, and its long-standing high supervision costs and supervision mode, become the focus of academic debate again.

      Two, multiple or single regulation: America financial regulation cost and regulation mode "

      Before the financial crisis hit, America completed from regulatory agencies ( Institutional regulation)[15](to functional supervisionFunctional regu-lationThe change). The basic idea is similar to the regulatory function, the function should be subject to the same regulatory, regardless of the nature of the mechanism by which exercise the function.1999Financial Services Modernization Act "(" AmericanGramm-Leach-Bliley Act) provided in the form of legislation to the function of supervision, namely "by the state and federal bank regulators to supervise banks, state and federal securities regulators governance, securities business, insurance committee is responsible for the insurance business and sales...... The most experienced regulators in its most familiar with the financial services regulatory domain".

      2005Years, USA at federal and state levels, with a total of115Financial supervision institutions engaged in financial supervision, but that Congress is also considering adding regulators.[16]Every institution within the scope of supervision regulations and supervision of the implementation of.[17]Thus forming a multi-level supervision system.

      The formation of America multiple regulatory system, rooted in the America culture advocating freedom, believed in the "separation of powers and checks and balances ("Check and balanceThe formation of philosophy, and diligently strive after) in competition regulators. Former Federal Reserve Chairman Alan Greenspan in his2007Years published new work "(" the age of turbulenceThe Age of Turbulence) described in the "multiple regulators are better than one." Indeed, in some sense, a "brain" thinking, "eye" supervision of the supervision system, centralized judgment than single regulation is more conducive to reducing regulatory decision-making mistakes, but also help to reduce the single supervision system of harsh and rigid supervision. Also, historically, bull supervision system does support the prosperity and development of the financial industry America. However, things changed, with the "hybrid" financial products and financial group continue to emerge, the great limitations of this supervision system gradually exposed:

      (a) multiple financial regulatory supervision of high cost, low efficiency

      Britain's Financial Services Authority (FSA) in2004Annual report, compared America, Germany, France, Hongkong, Ireland and Singapore's financial supervision cost, the conclusion that USA regulatory costs in the first nations.[18]Scholars have drawn American financial supervision cost is much higher than the conclusion.[19]2002 -2003Annual, USA regulatory costs is the British12Times, and if the America federal and state financial regulatory supervision cost associated with computing with words, actually this figure will reach16Times.2003Years, America regulatory spending more than Germany689% 2005Years almost no what to change663%.[20]2006Years this gap although decreased, but still quite amazing. This year American financial supervision costs up to52.6Billion, about Britain6.25Billion dollars9Times.[21]

      High regulatory costs, reduced the relative competitive advantage USA financial market. For example, a study of interstate business insurance company research shows in the States, repeated supervision mode, insurance products to implement multiple review and declare, reduces the efficiency and problems. In addition, because American financial supervision expenses from financial companies to pay federal and state regulatory agency fees, and financial companies usually will be passed on to customers, increase the cost of the financial services, and ultimately reduce the attractiveness of these Financial Services Company market.

      (two) "mixed" financial products and financial groups have emerged, supervision overlapping coexist with vacuum supervision

      With the development of financial innovation constantly, products and services of bank, securities and insurance have no difference, both banks, securities, insurance property financial "mixed" products (Hybrid product) have been produced, and has gradually become popular trend. For example, securities companies to provide cash account with accounting and saving function, variable annuity with securities and the characteristics of life insurance (Variable annuities), is one of the. In this case, compared with the single regulators, system design of multi inspection, inevitably exist regulatory overlap (Duplicate regu-lation) and vacuum supervision (Regulatory gap).[22]

      On the regulatory overlap, a large number of studies show that, regulators overlappings, issued regulations contradictory situation not uncommon, and financial companies often find themselves must accept supervision from different regulators repeatedly. For example, American Government Civil Affairs Committee (Commission on Organization of the Executive Branch of Government) early in the1994Years is proposed to integrate federal bank regulators,[23]2004Years America Gao (General Accountability Office) issued financial supervision regulations of the report, said the industry pattern changes forced USA regulatory framework must be adjusted.[24]

      On the regulatory vacuum, likeCDO(collateralized debt obligation),CDS(credit default swaps) financial derivatives, in the end the Fed, the office of Thrift Supervision or the securities and Exchange Commission to oversee? The law does not clearly, so that the temporary lack of regulators. The existence of multiple supervision, risk so that no one can get sufficient legal authority to take charge of the financial market system and financial supervision, the best time often because the coordination meeting and wait for approval and transient. The America subprime crisis, that is America federal and state regulators debate who should supervise and leave a typical example of the regulatory vacuum.

      American subprime crisis includes at least the following main market: first, loan brokerage business of mortgage brokers (Mortgage bro-kers); second, to provide loans to banks; thirdly, to allow loans like the stock traded loans from international market; fourth, special purpose entities to buy loans from banks is created ( Special purpose vehicles, SPV); fifthly, to help create a special purpose entity and packaging loans into securities investment bank; the six, credit rating agencies to provide credit rating; seven, provides the guarantee bond insurers complex mortgage debt. Among them, the mortgage brokers by the banking regulatory authorities in some states, but in a regulatory vacuum in other states. Special purpose entities, investment banks should beSECAnd the securities regulatory departments state regulation, however, the regulatory mechanism of credit rating agencies have basically no supervision.[25]Finally, regulators bond insurance company insurance regulators states. But it is onlyMBIAAndAmbacThe two bond insurance company, because of the subprime losses reached240Billion dollars.[26]

      The loan securitization, banking supervision department did not seem to consider its adverse effects, also failed mortgage lender to credit rating agencies to disclose the misleading, inaccurate information, as the "soft fraud" ( Soft fraud) behavior[27]. Securities regulators failed to consider the loan based securities is how to create, but failed to ask the credit rating institution approved securities rating in the neglect of the underwriting standards greatly reduced this fact. And bank regulators failed to consider in the banking and securities regulatory authorities failure or failure, may damage the insurance companies, especially those with mortgage securities as the insurance object. In addition, the structured products in financial markets[28]The lack of transparency, means that both investors and regulators can not accurately judge who bear the credit risk. While in federal and state regulatory bodies to monitor the direction of the lost but big nerve racking, makers of subprime have claimed they could control the risk, any regulation is redundant. All the signs indicate that, regulators failed to financial market transactions to take into consideration, to guard against systemic risk, apparently thoughtless.

      No doubt, the subprime crisis has hurt America financial company's profitability, and greatly reduced their peer competition with other countries. And it make me on the spot is in crisis, brewing process, "relax regulation" or "no supervision" has once been regarded as a magic weapon to enhance the market competitiveness have proved effective every time.

      In view of this, USA federal and state regulatory agencies have tried to solve the multiple supervision and regulations inconsistent problem. For example, federal bank regulators have now jointly issued a number of laws and regulations, and the Comptroller of the currency, Thrift Supervision Department office, Federal Deposit Insurance Company by a unified application form, in response to the opening and the Federal Deposit Insurance application. The National Association of Insurance Supervisors (National Association ofInsurance Commissioners, NAIC) also have established a centralized state insurance product application and approval system. However, the lack of a America through various regulatory agencies and effective forum. In this forum, the federal and state financial services regulators to share information, the possibility of transfer risk between different departments, and coordinate and improve laws and regulations to deal with risk.[29]The lack of such a system arrangement, the risks like worrying, because of the financial crisis, obviously does not belong to the jurisdiction of the federal or state financial services regulators.

      (three) multiple system is not conducive to the supervision of financial groups, easy accumulation of systemic financial risk

      Innovation in the financial markets continue to progress at the same time, the market is more and more inclined to raise funds through the capital market, instead of the traditional commercial bank loans, which produced a "disintermediation" ( DisintermediationThe phenomenon of)[30]. This trend will also increase the number of all kinds of financial institutions, and that banks and other financial institutions, the money market and the capital market too intertwined, will eventually accumulated systemic financial risk, brought huge negative effect to the economy and financial markets.

      Systemic risk is the risk of endogenous financial system. The market itself is not sufficient to encourage the operation of the financial system, reduce systemic risk (because it would reduce the short-term profit of company), in order to maintain the overall stability of the financial system.Steven SchwarczThe professor will this problem is called a "tragedy of the commons" (Type of tragedy of the Commons). Therefore, in order to improve the efficiency and to promote its adventure amoral behavior of Financial Services Company will bring financial externalities internalization, issued financial regulation is imperative. However, be reduced to fragments American existing regulatory framework, and can not solve, or the beginning of the design is not intended to solve the "mixed" financial products and financial group, problems, especially can not solve systemic risk spread to the bank external problems.

      In addition, a "hybrid" financial products and financial group supervisory powers, often become the focus of the federal and state banking, securities and insurance regulators debate, the result of the struggle is either excessive regulation caused by repeated supervision, either is the "three no" and lead to regulatory vacuum, finally could hurt the interests of investors and customers. Finally, because of various regulatory rule making more and more fine, in ensuring the accuracy at the cost of supervision supervision efficiency, response to the change of the market more and more slowly, eventually weakened the international competitiveness of American financial market.

      (four) financial regulatory competition leads to "regulatory race to the bottom" and "regulatory arbitrage"

      According to the theory of public choice, public policy formation is not the abstract "public interest" based on, but of different interest groups struggle and compromise. On the one hand, the different financial regulators are inevitably influenced by interest groups within the Department (i.e. supervision object) pressure and influence, on the other hand, regulators themselves in the fight for regulatory authority and supervision resources also have specific interests. Therefore, in reality, the financial supervision institutions tend to try to maintain their scope of supervision, and actively invade and reduce other regulators sphere of influence. This regulatory competition is vividly called "turf wars" (Turf war).

      A direct consequence of the regulatory authorities "turf wars", is the so-called "race to the bottom" phenomenon (supervisionRace to the bottom), namely the regulators to please the department interests, attract potential regulatory object or extend the regulatory sphere of influence, to reduce regulatory standards, resulting in the reduction of the overall level of regulation, hurt consumers (investors) and the social public interest. In general, the regulators more, the regulatory structure is more complex, the greater the risk race.

      Many facts show that, although America federal and state regulators have to cooperate in a certain level, and coordinated action, but at the same time, they spent a lot of time and money for power, and frequently on the scope of regulation of fierce controversy.[31]These struggles, as20Century80In between the securities and Exchange Commission and the Commodity Futures Trading Commission on Securities and futures supervision right of debate, is fully documented.[32]History always repeats itself, all the place, but only yesterday reprint. For example, America about capital market supervision interim report called for, to take measures to cut state in the regulation of national financial companies in the role, to solve the finance companies over regulatory issues. But the North American Securities Administrators Association (North American Securities Adminis-trators Association, NASAA) immediately issued a statement saying, it "will continue to resolutely safeguard state level securities regulatory authority", and to any attempt to federal regulators over state regulators as the goal, "unremittingly struggle".[33]

      Another disadvantage of multiple regulation is "regulatory arbitrage" (Regulatory arbitrage), which provide the same product in different financial institutions by different regulators, resulting in inconsistent rules, standards and law enforcement practice, which leads to financial institutions try to change the category, in order to put himself in the most relaxed regulatory standards or regulation means the most peaceful and regulatory agencies under the jurisdiction. The Financial Services Roundtable (AmericaFi-nancial Services Roundtable) in2007At the end of the year entitled "blueprint" (improve USA financial competitivenessThe Blueprint for the USFinancial CompetitivenessThe report pointed out that "), structural defects America system of financial regulation: regulatory objectives, multiple federal and state regulators in different target will bring regulatory potential conflict, lead to regulatory arbitrage problem. When the conflict occurs, will delay the implementation of the policy, leading to American financial institutions at a disadvantage in global competition. The implementation of the new capital accord American is a typical example of. When Europe had started, and America need at least two years. For instance, each supervision department to discuss a new related mortgage business guide spent about a year's time, although the guidelines apply only to federally regulated lenders, does not apply to state regulated lenders."[34]

      Three, the legal dislocation: laws and regulations promulgated the real economy background, which could not meet the need of virtual economy

      USA and countries around the world the existing corporate governance, financial supervision laws and regulations, are introduced to the industrial capital of the main economic background. However, in recent years, financial liberalization, financial market, the profit maximization, from the system, the market environment to the internal power, provide sufficient conditions for the development of financial derivatives. Therefore.20Century80Since the 1980s, the financial innovation are almost focused on the design and promotion of financial derivative products. High leverage of financial derivatives, a large variety of transactions, the formation of a free from regulation beyond the horizon of the huge "virtual financial system". So it was this: "real economic world is from industrial capital to financial capital as the leading factor of virtual economy."[35]Data show that,2008Years America financial assets areGross domestic productThe4Times, while derivatives has reachedGross domestic productThe12Times. Global financial instruments contracts596Trillion, of which only the exchange trading49Trillion.[36]A large number of derivatives no transparency in the OTC,, are unable to understand the leverage and counterparty is bankrupt or has a risk, "a blind man on a blind horse, midnight a deep pool" to describe is not an exaggeration.

      Fictitious economy is rapidly growing geometrically, make laws and regulations and the reality of the original seriously out of line, greatly induced moral hazard. Embodied in the following aspects:

      (a) shareholders and corporate responsibility and the virtual economy doesn't match

      In the system of the company form of organization, its shareholders is limited liability company, with its property shall bear unlimited liability.. Shareholders undertake limited liability, which is the typical characteristic of the company system, contribute to the separation of ownership and management, reduce the cost of supervision of shareholders. Accordingly, once the company is dissolved, the company should put all of its assets to pay off debt, this is also the entity economy have proved effective every time the classic rule. In this regard, the market for many years has no doubt. The limited liability system means that, once the company went bankrupt, the loss of the company will be transferred to the creditor and ultimately passed on to the society.

      However, in the virtual economy, these laws has become a catalyst to stimulate the moral risk. In the virtual economy, financial leverage effect of derivatives by several times, dozens of times, shareholders can amplify business risk but only assume limited responsibility. Because of the company's operating funds mainly from the creditor, so once the huge losses, can only be used by creditors and taxpayers foot the bill. For example, from2004Years to2007Years, in Lehman's balance sheet expansion, shows the total assets have reached3000Billion dollars, but at the same time, the Lehman brothers only increases60Billion dollars very little equity. A related to this is the fact that the Lehman brothers, a hundred years do not collapse, why now have accumulated financial risk until the collapse? The past to unlimited partnership, is one of the important reasons. The partners shall bear unlimited liability, Wall Street is not so greedy, but honest to make marketing fees and commissions for the industry. In recent years, many Wall Street investment banks have been transformed into listing Corporation, greed, corruption and moral hazard was greatly inspired.

      A fact related to this is the ability of the virtual economy, the company to assume the responsibility of the greatly reduced. In the entity economy, the closure of the factory, workshop, machine equipment can repay creditors; and in the virtual economy, investment banks, in addition to building (if not rent), brand, customer network original value of depreciation, even be not worth a penny, no settlement be enlarged several times, even a hundred times the debt. By contrast, in the real economy, the company bankrupt, basically is to bear the debt, does not need the government to rescue; but in the virtual economy, as the foundation of enterprise management is the credit, the government must save the market to restore the trust crisis on the financial industry..

      (two) the relationship between executives and the company the real economy and virtual economy under the background of serious not adapt to

      According to the traditional legal entity economic forms, there are legal relationship of agency executives and company. Executive trustee company assets, as long as compliance with the law, the legal consequences of their actions undertaken by the company one. In this legal framework, Wall Street executives through high welfare and consumer service arrangement, open "legally" erosion property of the company, to the impairment of the creditor's rights guarantee for the price to fill one's own pocket.

      In addition, driven by self-interest, investment banks on Wall Street elite obsessed with derivatives design complex, the investment bank's profit model is not based on health economy and asset base. With the credit chain elongated, product complexity, the banks more vulnerable. In addition, because of not having to bear the corresponding legal responsibility, Wall Street elite occupation ethics is more scarce. They neither truthfully to the customer risk products may reveal, the banks also did not take effective measures of risk management, the risk transfer to the broader range of institutions and people. At the same time, executives have seized a huge amount of wealth. According to statistics,2007USA years, Wall Street's five largest investment bank's annual salary up700Million dollar, than2006Years of higher18%These huge bonuses, directly led to the collapse of bank liquidity, with2008Subprime mortgage storm upgrade, banks too, operation difficulty. After Lehman's bankruptcy, as Lehman's ordinary investors to obtain compensation and be nonplussed over sth. when, it was found in New York left ten thousand Lehman employees, but is expected to have25Million dollars in bonuses, the bonus is set up in the Lehman bankruptcy before!2009Years1Month, statistics New York state comptroller display, Wall Street executives2008Annual total184Million dollar bonuses, is still equivalent to2004The financial industry boom levels. USA President Obama very angry, said "it is the height of irresponsibility, shameful behavior". Some members of Congress suggested settings "claim clause", that is when the company executives in the problem, the government has the right to recover the executive compensation and bonuses.[39]

      A direct question is, why the Wall Street investment bank staff so high? Although they do than other sectors of industry, but the working time converted into overtime, also not earn more than ordinary people7Times; theory of intelligence, Harvard University professor may not be lower than the Wall Street investment bank's executives, but the average annual salary of the former but also12Million, the Wall Street investment bank executives have frequently with hundreds of millions of annual salary[40]. This is against the basic principle. In the arrangement of the irrational system, for instant success, like Wall Street tendency is greatly magnified: market price of salary, bonus, rolling, may wish to take on more risk, the red will be larger; and if a bad market, companies huge losses, also does not need the executive in charge of pack up and leave, big deal. Traditional agency laws between the company and the executive, the Wall Street quickly became "greed". This agency relationship and significant mismatch, should be thoroughly reviewed and revised.

      (three) the law of financial derivatives, credit rating agencies and executive constraint and discipline, and virtual economy doesn't match

      "Financial market" (the president's working groupThe President'S Working Group on Financial Markets, PWG) report said, the financial crisis has exposed the subprime mortgage underwriting standards the complete collapse of the problem: because of the lack of sufficient risk disclosure and disclosure, issuers, underwriters, credit rating agencies and investors around the world, in the subprime mortgage securitization process, did not have the necessary market discipline. Moreover, regulatory policy has failed to eliminate the existing risk management weaknesses. For example, the existing provisions relating to the company's capital to encourage the use of financial derivatives to the asset securitization, but failed to encourage companies to keep capital and liquidity sufficient to prevent risks. In addition, the regulatory authorities also failed to insist that a company on their off balance sheet business tools (OffABalance sheet vehicles)[41]Proper disclosure.

      Credit standards in the subprime mortgage market is loose, loose constraint mechanism of financial market of the tip of the iceberg. After the liquidity in the years of economic growth and sufficient market, global investors seem to pay no heed to the risk. Either in the real economy or in the virtual economy, all kinds of credit rating agencies are expected to deliver true, accurate and complete assessment information, so as to reduce the information asymmetry between investors and financing conditions. Moreover, because the asset information opaque packing, structured products and buyers do not understand the complicated, lose their independent judgment, can only rely on credit rating agencies. Therefore, the evaluation conclusion of appraisal institution, also bears the function of credit enhancement of financial products.

      However, if the rating conclusion assessment agencies make inaccurate, misleading investors make a wrong investment decision, assessment agencies should bear the responsibility? In this regard, the laws of all countries are to make sure of the provisions.

      For example, China's "Securities Law" article173Regulation, securities service institution for securities issuance, listing, trading and other securities business production, issue the audit report, assets evaluation report, financial advisory report, the credit rating report or legal opinions, shall be diligent and conscientious, the production, the documents issued by the authenticity, accuracy, integrity verification and validation. Its production, documents issued have false records, misleading statements or major omissions, and causes losses to others, the listing Corporation, and the issuer shall bear joint and several liability, but is able to prove that he has no fault except.

      In view of this, on the basis of law of our country, the America financial crisis in the subprime mortgage financial products credit assessmentAAAFinancial institutions, if cannot prove that he has no fault, it must bear the corresponding legal responsibility. However, as we mentioned earlier, the rating agencies can only be based on historical data on the econometric model to estimate the probability of default. Once prices, interest rate changes significantly, the original model assumptions would not exist. According to the model deduction that the rating results, there will be significant distortion. In this regard, assessment agencies who felt that there is no fault, they say, if conditions change, not the responsibility of evaluation mechanism. However, it should be noted that, in the traditional economic form, if the factory or company's product quality is not good, they must recall; and in the virtual economy, Wall Street production of "toxic" financial assets evaluation agencies, strengthen these products credit, but need not to recall, also need not assume responsibility, though they charged the big rating fees.

      In view of this, "the president's working group" financial market stresses, the premise and the hypothesis rating methods for credit rating agencies in the future depends on, must be fully disclosed, so that the user can understand the rating conclusion specific rating is how to make the. At the same time we must improve the credit rating agencies, which applied to the rating method of structure of the product is obviously different from the rating method for corporate bonds and government bonds. In addition, the open approach to reform the credit rating results, so that the public can conveniently obtain the rating agencies on the structure of products and other asset-backed securities rating results and measures, compared to.

      At the same time, "the president's working group" financial market further emphasized the significance of disclosure. The Fed should publish more conducive to consumer protection rules, and promote a more conducive to the protection of investors' information disclosure rules; federal and state financial regulatory departments should be coordinated, providing a consistent rule for all kinds of mortgage products distributor; regulators should ensure that investors and asset managers risk identification ability of independent, not purely rely on credit rating agencies. Credit rating agencies must disclose the qualitative assessment of collateral assets backed securities, and asset backed securities underwriter due diligence the statements completed (Due diligenceThe level and scope of).

      Four, on China's financial supervision law and policy implications

      Reflection USA financial supervision departments and academics, brought to the law and policy of China's financial regulation enlightenment is diverse. We must clarify the financial market myth "aestheticism", in the following aspects and draw lessons:

      (a) the basic value of financial supervision should not let the target is located in the "big" market

      Since the economic globalization, the scope economy, scale economy of commercial logic and financiers of power under craving, financial industry mergers and acquisitions to be raging like a storm, Citigroup as the representative of the growth of some of the big banks explosive. From the1997To2006Years not to10Years ago, the world25Banks accounted for the global front1000The total assets of banks by the ratio of28% rise to41%. With its branches of the global layout. For example, HSBC in the global institutions and must150Regulators in countries and regions to deal with.[42]Similarly, many countries including American, financial regulators also indulged in the domestic financial market share growth. Over the past few years, America finance "manufacturing" market value of up to hundreds of billions of dollars in loan and derivative financial products, financial market appears to be thriving.

      At the same time, once, American financial industry also complained about the USA excessive regulation, as well as "the whole environment lawsuit" to American companies than any other country in the world, are more vulnerable to the threat of litigation, therefore reducing the competitiveness of the market.2002-2004Years, institutions and individuals American stock market suffered an average annual35Billions of dollars in monetary sanctions, most of them from the group litigation reconciliation, otherwise1.6Billions of dollars from the National Association of securities dealers (AmericanNASDThe arbitration decision).[43]The theorists often quoted the British approach as an argument. In history, Britain had to curb the phenomenon of the securities market "lawsuit boring", the "loser pays" rule. Under this rule, the losing party not only to pay legal fees, and to pay the cost of litigation is the winner.[44]

      However, in recent years, the financial supervision basic value ignored, so that these countries had enough financial bubble. European countries have adopted the "group action" (Group litigation) or "representative action" ( Representative actions) etc., giving investors more action, and the British also cancelled "loser pays" rule. Because the vast majority of national consciousness, financial innovation is a "double-edged sword", it is in the active transactions, transfer and disperse the risk function, can also rely on leverage effect of cumulative risk, and even trigger financial storms. Therefore, in the promotion of financial innovation, enlarge the market at the same time, must not be based value resolution of financial supervision, "only live, can open". While the action is an effective form of regulation.

      In China, only the combination of practical level of China's financial industry and affordability, prudent and promote financial innovation, to improve the overall competitiveness of the financial market. Blindly promote financial innovation, enlarge the market share approach, apparently did not. However, for a long time, China's financial market, especially the stock market fell into "the development and standardization of priorities" myth, regulatory role therefore vacillate, for the securities market, trading volume diligently strive after, in effect greatly digestion the regulators "protection of investors and financial market consumers" value. ．

      For example, when the stock market downturn, the SFC is rarely made the punishment decision, the reason is obvious which fear of punishment will be a further blow to the confidence of the market. On the contrary, in the stock market more active period, the securities regulatory departments can take corresponding measures, intensify punishment. In this way, burdened with the development and regulation of market duty supervision disciplinary measures, can not change, the typical performance is strong, the policy of punishment, punishment standard continuity of weak, not a punishment does not follow the statutory procedures. The campaign style law enforcement law enforcement and expediency, not forming the system, not forming the habit, more do not form culture.[46]

      In the current global are under the background of "Post Crisis Era" the mode of financial supervision, financial supervision departments should abide by the regulation standard system and resources environment, protection of investors, to cultivate market credibility, is like the engine in aircraft, pier in bridge, plays a fundamental role. Can't appeal to the preservation of "big market" for the purpose of deviation. The global outbreak of the financial crisis has repeatedly shown that, in the face of greed and cunning regulators attempt nothing and accomplish nothing market, no matter how much, are only castles in the air.

      (two) the political wisdom of promoting the perfection of the financial regulatory framework

      Look from the history, change the world's financial regulatory framework, is a significant adjustment of pattern of interests, to achieve the desired effect, must use enough political wisdom, which involves two levels of legislation and law enforcement.

      1Financial legislation must be pragmatic considerations. The influence of interest group

      20Century30Age, American economy encountered not occur even in a hundred years of the great depression. President Roosevelt is the implementation of the new deal, in the two term thorough reconstruction of the banking industry, and launched the "Securities Law" and "Securities Law", moreover also revised the "bankruptcy law", "law of public utilities" and related bonds and investment laws and regulations. However, it must be noted that, Roosevelt's new deal did not accomplish the whole task at one stroke, but the decomposition in different periods, to avoid being interest group fierce opposition and a power loss

      History is always mirror. Although the American financial crisis shows that, the new deal established securities regulatory framework of Roosevelt in some ways has completely out of date,[47]USA financial regulatory structure adjustment is imperative, but as of seven years agoSarbanes-Oxley ActHas been faced with political obstacles like this, "the president's working group on financial markets" proposed several important suggestions, is also facing many invisible political barrier. State banks and insurance regulatory authorities are not willing to handing power to the federal regulators, and the Commodity Futures Trading Commission (CFTCRather than be incorporated)SEC. If this plan submitted to Congress to vote on the package, will face great interest group of opposition, the results will be difficult to expect. Thus,2008Years3Month31DayAmerican, the Ministry of Finance announced a regarded as USA since20The biggest overhaul of financial regulation since the "Great Depression", the economy will be a blueprint for reform is divided into short, medium and long term goals, apparently also used the same "staging governance" political strategy.

      This kind of political wisdom, is also perfect our financial supervision system needs. China's financial operation and supervision system has experienced the "mixed operation, financial supervision" and "mixed operation, separated supervision", "separate operation, three stages of separate supervision". Since the outbreak of the financial crisis on American, at present our separate supervision system of criticism, mainly concentrated in two aspects: first, can not effectively regulate financial group; second, development can not effectively deal with financial innovation in financial products as the representative of every hue. However, the current financial supervision system established, if from2003The establishment of the CBRC shall, in just six years time. At present, the regulatory authorities is how to do a good job in their field supervision, improve the regulatory system, and should not be in the absence of sufficient argumentation and empirical support to jump start the supervision integration.

      In addition, the above about America financial supervision due to the lack of effective information communication platform and induced many problems analysis, is applicable in china. "China's banking supervision law" article6The people's Bank of Chinese method "and" the35Establish a supervision information sharing mechanism between the provisions of the CBRC and the people's bank shall, in relation to each other and with other financial regulatory agencies, "the people's Bank of China law" article9The State Council has authorized and establish the coordination mechanism of financial supervision. But, so far, the coordination of financial supervision is limited to the CBRC, CSRC and the China Insurance Regulatory Commission not regularly held a joint meeting of supervision, stay at the policy level, not the legal mechanism, content also to "retreat", the actual effect.

      Therefore, learn America lessons, umbrella supervision platform to build one through the financial services supervision, to integrate the information and resources, it is necessary to. From the actual situation in our country, the people's Bank of China undertakes to guard against and defuse systemic risk, maintain the good operation of macro economy responsibility, can better in the prevention of financial risks and allow the moderate risk behavior in order to maintain the balance between macro economic vitality, but unlike other professional regulatory organizations exist to prevent excessive suppression of risk propensity of financial institutions collapse. In view of this, under the State Council shall be made according to the "people's Bank of Chinese law" article9The authorization, the people's bank regulators confirmed overall position in the form of administrative rules, the establishment of the people's Bank under the auspices of the permanent financial supervision and coordination framework. In this framework, the various financial products to "function" as the basis for the coordination and supervision, and by the people's Bank of the financial holding company's statutory regulator, which is more conducive to the realization of the fact that exists on the supervision of financial conglomerates.[48]

      2Financial law enforcement must be reduced. The effect of nepotism

      "The president's working group" financial market report points out, the existence of nepotism, greatly reduced the effectiveness of financial law enforcement. According to the report, Wall Street high, prices in bubble economy in severe cases, still can with to practise deception of financial derivative products, launched the diverse, it really fantastic. In fact, as early as in2003Years, Freddie was found in2000Years to2002Years of false income50Billion, and is USA Housing Enterprise Oversight Office open1.25The huge fines billion dollars. Freddie in2006Years for fraud by the securities and Exchange Commission fined American4Billion dollars. It has long been signs, and is responsible for the investigation of the Federal Bureau of investigation, but until America2008Years9Month, to the "two rooms", the Lehman brothers, American international group of potential fraud investigation, really puzzling.

      The FBI says," 9·11"The agency will be a large number of manpower to counter-terrorism, unable to cope with the survey involved a financial case so wide. However, this argument is not convincing. A Federal Bureau of investigation officials declined to be named said, but the agency had to mortgage banks and insurance companies launched an investigation, but fruitless. Why so?CNNDirect reference, the relationship between these institutions and USA political complicated and difficult to deal with is the problem of the most deadly and complex. American media2008Years7He said, "two rooms" the past10The annual cost of nearly2Billion dollars lobbying important politicians, including Republican presidential candidate John Mccain and Democrat Barack Obama (now American president elect) an important figure in the camp.

      In any case, the Wall Street one after another scandal, all without exception shows America securities supervision serious misconduct. The scandal broke at the beginning, the broad masses of the people and investors think is the complexity of financial instruments beyond the cognitive level, regulators in fact, nepotism is the deadly scourge. To cause investors500Billion loss Madoff fraud case, even in ordinary investors perspective, Madoff is not without flaws. In the past20Years, whether it is a bear market or bull market, Madoff managed investment funds, like a spring, always keep every month approximately1% growth rate, this is a fantastic. In addition, the Maxwell fraud case, company accounts audit arrangement is an obvious "missed trick". According to the National Association of securities dealers America record, as of2008Years11Month17DayMadoff, company management assets171Billion dollars, but it has many CPA firms hire an their business scale without matching. According to the survey, the New York based accounting firm only in a20Square meters of office, a total of three employees. But year after year, fraud, the victims all over the world, behind the Maxwell, is bound to have a huge fraud team composed of accountants, securities brokers, lawyers etc.. Light by Maxwell a person, only monthly falsified financial statements, by e-mail sent to the customer of this work, it is enough to make the tired paralysis.[49]

      2009Years2Earlier this month, a man named Harry Markopolos (Harry MarkopolosThe witness testified that), the past9Years, he has been five times toSECImpeach Madoff fraud, every time we listed not only their own point of view, there is plenty of data and facts, however, in the face of flaws so obvious, made mask so wide scam, AmericanSECBut always failed to hit, to turn the tide. This is famous for its supervision strict America, tantamount to a slap in the face. The card said, Madoff is one of the most powerful Wall Street on the people, he and the SEC's personal conceal the fraud.[50]

      In the global heat with the cold today, careful scrutiny, China's financial market regulators and industry nepotism very worrying. In theory, the regulators and the industry have strained relations between the endogenous, and appropriate physical and psychological distance, is the basis to maintain the relationship. However, with the stock market as an example, because of the history origin and regulators and industry personnel "two-way flow", the relationship between the securities regulatory departments and the industry of our country, apparently too "close", which is reflected in two aspects: first, in the regulation of the stock market, regulators and brokerages and fund companies tend to be "a dear brother, his soldiers" and "cooperation", the more from institutional "path dependence"; second, the flow of personnel, supervision department has become an important talent brokers, fund transfer. From the2001So far, the CSRC and the local securities regulatory authorities (CSRC) turnover as fund, brokerage executives situation It is often seen., and this momentum is strengthening trend.[51]It is difficult to understand, these "down" to the industry's senior officials, not after a "cooling off period" and can be directly as.

      In China social pattern of difference sequence, "the capital of interpersonal relationship" unspoken rule under the leadership, supervision layer to violations of the law of the former colleagues, friends, under the leadership of the securities company or fund company and severely, will face great difficulties and psychological pressure. So, for the improper behavior of the industry, regulators "discretionary punishment", "not to be taken as a precedent" tendency is obvious. The ailment does not treat into big trouble, in history, our financial brokerage illegal operation and accumulation of the hole often pay, which is suitable for example.

      In our country, improve the financial supervision system, the system should be to eliminate negative effects of regulators and the industry brought about by the nepotism. Specifically, regulators and industry personnel should be based on the one-way flow is appropriate, namely industry personnel to regulators, but must as far as possible inhibition of regulators to the channel, otherwise, regulators are likely to seek the "supervision" connections, in the supervision for rat bogey, decrease the supervision performance.[52]

      (three) a thorough reflection and reconstruction does not adapt to the virtual economy financial regulations

      Financial regulations lag behind the reality needs, the global outbreak of the financial crisis will be the most incisive interpretation, China certainly not alone. For example, when America President Obama at Wall Street "greed", large firms -- China come first on the list of Guotai Junan Securities companies are also faced with "per employee100Many blame million astronomical salary ".[53]

      In fact, Guotai Junan "salary" event, but China's financial management of Enterprise Inc and the legal regulation of the problems with the tip of the iceberg.

      First, the financial enterprise salary system is not standard.

      In order to Guotai Junan Securities Company as an example, the company is state-owned capital holding financial enterprises, in the2008Results obvious decline, the provision of compensation and benefits expenses than2007Annual growth57%. In addition, the company2008Business income for the year11Billion yuan, but it can provision32Billion yuan of salary and welfare costs, most of which came from the company to reduce the Sinopec corporate shares acquired45Billion yuan of revenue. Obviously, this directly eroded the interests of shareholders, resulting in the loss of state-owned assets.[54]

      As the "Financial Times" chief commentator Martin Wolf sarcastically said: "American subprime crisis is unusual in that, it is not remarkable: America mechanism than perhaps ever updated, more flexible, but the cause of the error is still the old one."[55]Here the so-called "old", namely "human greed and cunning". Similarly, one of the disease chronic state-owned financial enterprises over the years is the absence of shareholders of state-owned enterprises, and the resulting high agent cost. Nowadays, many countries, including USA, positive on financial executives annual salary limit at[57]Executives of financial enterprises, improve the salary system of our country, especially the state-owned monopoly and privilege performance from the profitability and market operation phase separation, it is a pressing matter of the moment.

      Second, the responsibility to regulate financial corporate shareholders and executives face reconstruction.

      And now the global bailouts of financial companies, in the history of China's fiscal, once again, the three banks and securities firms to pay for the bad debts. In the case of the banks, including two of the largest are:1998The national state-owned banks1.4Trillion bad assets, and to its injection through various forms8000Million9000Million yuan capital;2004The beginning of the year, the central will450Billion foreign reserves to inject into the bank, CCB this two state-owned commercial banks. The public resources to help the logical basis of state-owned banks bad debts is clear: first, from a historical point of view, the state-owned banks have long assumed that the state-owned enterprise reform and economic transition cost, the bad debts, bad debts and other historical burden, many of the resulting into; secondly, from the standpoint of financial stability, burdened with the huge non-performing assets. The state-owned banks facing liquidity risk, the central bank if not rescue, risk one bank may spread into systemic financial risk; third, after the overall opening up in banking, corporate governance, internal person control the prevalence of imbalance of state-owned banks, it is difficult to compete with foreign banks. Bad debt, financial capital and various means of state-owned bank, aims to "buy", for the bank to prepare for the listing.

      Nevertheless, finance as the bank bad debts to pay, or the controversy: the government, the central bank should be to what extent, the way in which financial institutions to support, maintain financial stability? After cleaning for those who have to lend a helping hand to the historical burden, whether this implicit guarantee and direct injection of hidden moral risks? If commercial banks realize that business failure will be the central bank lending support, then, operating behavior of commercial banks will be more adventure. Also, the government to banks large capital injection, with taxpayers' money for financial transfer payment so huge, decisions need to be made at what level? Who shall waste these huge public resources to face the public accountability?

      In addition to banks, finance has large sums for securities companies to pay. South Securities collapsed, Minfa stock collapse, Yunnan securities, securities, securities, Fu Jia Musi Xinhua securities such as a large number of brokerage mine or fall, no not because firms in the expansion of the greed driven change constantly like cloud and wave, in the stock market due to rush into danger. In fact, by the public finance to pay for the misappropriation of client brokerage margin caused by the deficit in the legal circle, not smooth. "Securities Law" article73A forbidden to embezzle the deposits of clients, the193A further set the misappropriation of client brokerage margin of the administrative and criminal liability. Many firms against crime, whether as a result of loose financial internal control mechanism or major shareholders of lust and greed condoned these illegal acts, executives and major shareholders are to blame. If still adhere to the shareholders of its holdings of foreign limited liability, enormously will cause moral risk. Therefore, according to the company law, when companies become shareholders play the gangster tool, the court may require the shareholder to hold the liability for the creditors of the company other than the equity capital to assets, the so-called "piercing the corporate veil" principle.[58]However, in recent years, financial firms pay insufficient capital development to repay customers margin, without requiring a large share of capital contribution of shareholders except responsibility, in addition to induce the moral risk, also produced an important question: get full compensation of investors, will lose the accountability related behavior people divert margin responsibility Motivation; and the lack of the public and the pressure of public opinion, judicial organs for securities dealers from the margin behavior will greatly weaken! In other words, the finance bill at the same time, also "bought" the product of many shareholders and executives! Many of the illegal and criminal acts shall be appropriate, not to get caught "wide". Analysis of words, the financial big shareholders and executives responsible do not match the serious situation, must be in the reflection of the financial crisis will thoroughly purge.

      Conclusion

      Before America economic adviser to President Clinton, incomplete information economics founder Stiglitz had put forward a proposal on the transition states: "do as we say, but not as we do"[59]. In that context, Smith's emphasis is different system resources. In the Wall Street financial crisis evolved into a global financial storm today, we re experience 'remarks, but can be read by another layer of meaning: in market economy highly developed USA, financial supervision departments in the implementation of the system arrangement, all investors benefit maximization hang in mouth edge, due to it must be to win. Because, "in the political field, the individual participants to pursue private benefits, almost always be every kind of moral philosophy denounced as' evil",.[60]However, under the erosion of special interest groups and many political factors, just pure technical rules of financial supervision law, become an uncertain interest arena.

      In short, the financial regulation really reduced to market and technical rules, rather than personal and political art, is the implementation of effective supervision on financial market path.

   

 

 

 

Notes:

[1]2008Years3Month16DayThe fifth largest investment bank, America (Bell StenBear StemJP Morgan chase (was)JP Morgan ChaseThe acquisition of Wall Street), in the same year panic9Month15Japan, the fourth largest investment bank (Lehman brothersLehman Brothers) filed for bankruptcy protection to USA bankruptcy court, the third biggest investment bank Merrill Lynch (Merrill LynchBy America Bank ()Bank of AmericaAcquisition of hundred years old store), once the collapse, the extinction of the speed, eye popping.2008Years9Month21DayThere remained but a single one., the two largest investment bank Goldman Sachs (Goldman Sa-chsStanley (Morgan) andMorgan StanleyTransformation into a Banking Holding Company). So far, confused a year long America real estate "subprime" financial crisis, eventually evolved into the "shock the world financial turmoil on Wall Street". Since then, American Congress after a fierce debate, by8500Billion dollar bailout plan. The analysis thinks, in2008By the end of America, has owed55The huge debt trillion. Debt this astronomical, so that the average American debt18Million dollars. USA domestic "to the taxpayer money for the greedy Wall Street pay" controversy has not subsided, countries have been forced to take action, to deal with this unprecedented financial disaster. The above information is the author, and according to public reports consolidation. On the "America per capita debt18Million "reports, see Wang Chen:" Why say Wall Street collapse collapse: is all about greed "," Beijing Youth Daily "load2008Years10Month13Day.

  [2]Charles E. Schumer&Michael R. Bloomberg, To SaveNew York, Learn fromLondon, Wall Sreet Journal,Nov. 1,2006, at A18

  [3]John C. Coffee, Jr,Racing Towards the Top? The impact of cross-Listings and Stock Market Competition on International Corporate Gov-ernance, 102 Columbia Law Review, 1757(2002);Steven M. Davidoff, Regulating Listings in a Global Market, 86 N. C. L. REV. 89(2007);Donald C. Langevoort, The Social Construction of Sarbanes-Oxley, 105 Michigan Law Review, 1817(2007);Kate Litvak, Sar-banes-Oxley and the Cross-Listing Premium, 105 Michigan Law Review, 1858(2007).

  [4]Alex Halperin,New York: No Longer the IPO King, Dec. 27, 2006, WWW．Businessweek. com

  [5]Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc,128S. Ct761,772(2008)

  [6]Elizabeth F. Browne, The Tyranny of the Multitude is a Multiplied Tyranny: Is The United States Financial Regulatory Structure Undermining U. S. Competitiveness? 2 Brooklyn Journal of Corporate, Financial&Commerical Law,Spring, 2008,Pp. 374A376

  [7]Richard H. K. Victor, How Countries Compete: Strategy, Structure, and Government in the Global Economy 1(2007)

  [8]Elizabeth F. Browne, The Tyranny of the Multitude is a Multiplied Tyranny: Is The United States Financial Regulatory Structure Undermining U. S. Competitiveness? 2 Brooklyn Journal of Corporate, Financial&Commerical Law,Spring, 2008,PP. 374-376

  [9]Elizabeth Brown, E Pluribus Unum--Out of Many, One: Why theUnited StatesNeeds a Single Financial Services Agency, 14 University ofMiamiBusiness Law Review, p. 63-64(2005)

  [10]Howell Jackson, Variation in the Intensity of Financial Regulation: Preliminary Evidence and Potential Implications, 24 Yale Journal on Regu-lation, p.253, 258-59(2007). USA this financial crisis, rating agencies report to investors to materially misleading, relevant laws and regulations is far from the request.

  [11]The American financial crisis, including the Lehman brothers, many investment bank failed, failed to complete the relevant creditor's liability.

  [12]For example,2004With the America financial regulators43000Employees, equivalent to every100There is Wan Guomin in133A financial regulator, the financial supervision in cost60Billion dollars.Howell Jackson, Variation in the Intensity of Financial Regulation: Preliminary Evidence and Potential Implications, 24 Yale Journal on Regulation, p. 254(2007)

  [13]1995At the end of the year, American Congress passed "the Private Securities Litigation Reform Act (" Private Securities Litigation Reform Act, i.e.,PSLRA), the plaintiff qualification group litigation in the provisions of a new, more stringent standards, at the same time as the company's "forward-looking disclosure of fraud (" Forward-looking frauds) to create a safe harbor rule, limiting the plaintiff filed a class action ability, laws that strictly causal, applicable and the action of individual and joint and several liability, and set stricter conditions.1998Years, Congress through the "Securities Litigation uniform standards act (" Securities Litigation Uniform Standards Act, i.e.,SLUSA), abolished the state securities disputes group litigation practice, and uniformly formulated by the federal rules. In thePSLRAAndSLUSAUnder the dual role, a securities fraud penalties and enforcement mechanisms are compromised. Quoted from Luo Peixin: "scientific and non political commentary on research: Usa Inc management rules to reflection perspective", "social science" Chinese load2008No.12Period.

  [14]See Mark J. Roe,Delaware's Politics, Harvard Law Review, vol. 118,2005,P. 2503,2504

  [15]Supervision refers to the types of financial institutions as the division of regulatory authority basis, namely the same types of financial institutions by the specific regulation. In other words, the banking supervision by bank supervisors, supervision of securities companies by securities regulators responsible for supervision, the insurance company by insurance supervisors.

  [16]Elizabeth Brown, E Pluribus UnumAOut of Many, One: Why the United States Needs a Single Financial Services Agency, 14 University of Miami Business Law Review 1,28A39(2005).

  [17]The national banks must accept America Federal Reserve (Federal Reserve), the Comptroller of the currency (the Department ofComptroller of the Currency, OCCFederal Deposit Insurance Company (,) Deposit Insurance Corporation, FDICThe jurisdiction of the jurisdiction). As the Federal Reserve System members of the state banks must follow the Fed, Federal Deposit Insurance Company and the state banking license issued by the regulatory authorities. If an insurance company wanted in the United States50A state of business, it must obtain a license from the state, and followSECRegulations and state insurance / securities regulators based products. If a company's financial giants, also provide the banking, securities and insurance regulators to accept, it is innumerable, including the Federal Reserve, American the Comptroller of the currency, Federal Deposit Insurance Company, office of Thrift Supervision Department (The Office of Thrift Supervision, OTSNational Credit Union Administration (,)Na-tional Credit Administration, NCUA), the securities and Exchange Commission, the Commodity Futures Trading Commission (Commodities Futures Trading Commission, CFTC), the office of Federal Housing Enterprise Regulation (Office of Federal Housing Enterprise Oversight, OFHEOSecurities Investor Protection Corp (,)Securities Investor Protection Corporation, SIPCThe pension insurance company (,)Pension Benefit Guaranty Corporation, PBGC) and supervision of state banks, securities, insurance regulators.

  [18]Financial Services Authority, Annual Report, 2003/04 app. 5 at 99-103(2004).

  [19]Elizabeth Brown, E Pluribus Unum--Out of Many, One: Why theUnited StatesNeeds a Single Financial Services Agency, 14 University ofMiamiBusiness Law Review, p. 67(2005).

  [20]From theElizabeth F. Browne, The Tyranny of the Multitude is a Multiplied Tyranny: Is the United States Finanical Regulatory Structure Un-dermining U. S. Competitveness? Brooklyn Journal of Corporate, Financial&Commerical Law, Spring, 2008

  [21]Quoted from Liao Min: "from the subprime mortgage crisis American reflection of modern financial supervision", "International Economic Review" load2008No.4Period.

  [22]Of course, on the other hand, multiple regulatory framework may also bring more efficiency and market weight lighter results, because different regulators will start the regulatory competition. SeeHelen A. Garten, US Financial Regulation and the Level Playing Field P. 135 - 38(2001). The competition between big government regulators worry and preference, all make it take a single mechanism against regulators. In addition, see alsoRoberta Romano, Empowering Investors: A Market Approach to Securities Regu-lation, 107 Yale Law Journal P. 2359, 2360(1998). In this paper, the author advocates America states should play a greater role in securities supervision, encourage competition between regulators.

  [23]Steven A. Ramirez, Depoliticizing Financial Regulation, 41 William and Mary Law Review, 503,564(2000)

  [24]Financial Regulation: Industry Changes Prompt Need to Reconsider U. S. Regulatory Structure 75-76(Oct. 2004).

  [25]Vikas Bajaj&Julie Creswell, A Warning on Insurers Frays Nerves, New York Times, Jan. 31,2008

  [26]The former approach[25].

  [27]U. K. Financial Services Authority, Financial Risk Outlook 2008,At 9(2008).

  [28]Structured products refers to according to the market situation and customer demand, the financial instruments at strategy combination proportional products, mainly refers to the use of derivatives to create different risk and return for the investors' investment products.

  [29]Elizabeth Brown, E Pluribus Unum--Out of Many, One: Why the United States Needs a Single Financial Services Agency, 14 University of Miami Business Law Review, 1,28-39(2005)

  [30]Disintermediation is get rid of media from the literal meaning, before financing largely by banks as financial intermediaries play the role, to help fund surplus and capital demand exchange fund. So the supply and demand of financial disintermediation simple understanding of capital transactions both directly, not through the financial intermediary as a media phenomenon. In other words, it refers to the proportion of direct financing and indirect financing increased gradually, gradually declining proportion, commercial banks as the intermediary role in financing gradually weakened.

  [31]Elizabeth Brown, E Plunbus Unum-Out of Many, One: Why the United States Needs a Single Financial Services Agency, 14 University of Miami Business Law Review, 1,64-65(2005)

  [32]See Jerry W. Markham, Super Regulator: A Comparative Analysis of Securities and Derivatives Regulation in the United States, the United Kingdom, and Japan, 28 Brooklyn Journal of Corporate, Financial&Commerical Law, 319,362(2003).

  [33]NASAA: State Securities Regulators Want Congress to Ensure Their Authority, Securities Law Daily(BNA) (Jan. 31,2008)

  [34]The former approach[21].

  [35]Quoted from Wang Jincheng: "regulation to reflect" financial crisis "," contemporary financiers load2009No.1Period.

  [36]Wang Jincheng: "regulation to reflect" financial crisis "," contemporary financiers load2009No.1Period.

  [37]For example, China's "company law" article3Regulation, company is an enterprise legal person, which has independent legal person property, property rights. Company is liable for its debts with all its property. Shareholders of a company with limited liability subscribed capital contributions shall be responsible for the company; shareholders of the Limited by Share Ltd to the subscription of shares shall be responsible for the company.

  [38]This more detailed analysis, see Wu Zhipan: "legal issues" of the Wall Street financial crisis, load "law"2008No.12Period.

  [39]Yu Fenghui: "look at how Obama denounced the" shameful "Wall Street", "Oriental Morning Post" load2009Years2Month2Day.

  [40]America Wall Street Hedge Fund ranked the top five managers, annual income in the10Billion dollars. Quoted from Wu Zhipan: "legal issues" of the Wall Street financial crisis, load "law"2008No.12Period.

  [41]Off balance sheet business institutions, is also the mechanism to complete the exchange profit or risk is not included in the balance sheet, can not reflect the trading returns or risk.

  [42]The former approach[36].

  [43]Howell Jackson, Variation in the Intensity of Financial Regulation:Preliminary Evidence and Potential Implications, 24 Yale Journal on Regu-lation. 253,280-81(2007)

  [44]Linda A. Willett,U. S.- Style Class Actions inEurope: A Growing Threat, BRIEFLY?(Nat'l Legal Ctr. for the Pub. Interest,Washington, D. C),June 2005．At 6

  [45]For example, as of2007At the end of the year, the Shanghai stock market capitalisation Chinese up25Trillion, is located in the world the5, transactions amounted to30Trillion, financing6000Billion yuan. These data make the Shanghai stock exchange in the world rankings in exchange6. But at the same time, violations of the law of securities market can cause a temporary clamour.

  [46]Luo Peixin: "the Commission's boundary", "Southern Weekend" load2005Years5Month12Day.

  [47]For example, althoughSECIs the main regulators of many investment banks including Bell Sten, but it lacks the necessary funds to help, so almost attempt nothing and accomplish nothing in Bell Sten to solve the crisis. In addition, the function of the Federal Reserve decided its loans only to banks, making it incapable of itself and the Ministry of Finance launched rescue activities.

  [48]Due to the lack of a clear specification, morphology and structure This is not the only one. financial conglomerates in China, can be roughly divided into three categories: (1) by the pure holding company holding subsidiary financial institutions financial group (2) by financial institutions to set up / holding form other financial group (3) mixed group formed by large enterprises holding financial institutions. Our financial group in the legislative lag case fact and its development of regulatory negative conflict intensifies, revealed in Delong event. Delong's have200More association or control of the enterprise, besides business firms, including commercial banks, securities companies, financial institutions, trust companies, leasing companies, involved in almost all domestic financial business. Between financial and industrial and financial capital fusion, is an important reason for the rapid expansion of the phenomenon can. Delong event fully demonstrated the development of the financial group to strengthen supervision of the negative effect of conflict: the financial regulatory authority, market access qualification and license, the financial business and industrial and commercial business associates limited, intra group transactions control ("firewall" system) and other key system has not been established yet, the supervision unsystematic objects of regulation and supervision, to take advantage of; communication and information sharing and absence of emergency coordination mechanism, make the risk group did not receive timely identification, assessment and dissolve, leading to the loss of expanding. A more detailed analysis, see Liao Fan: "the choice of financial regulatory competition, conflict and coordination of the supervision of mixed operation system", http://article. chinalawinfo. com/article/user/article_display. ASP ArticlelD = 43078?,2009Years2Month2DayVisit.

  [49]Luo Peixin: "financial obscurantism? Madoff securities fraud has the feeling "," Legal Daily "load2009Years1Month9Day

  [50]Zhou Jia: "Madoff" terminator "opening", "daily of the first finance and economics" load2009Years2Month6Day.

  [51]For example, in recent years, firms have to be set up the compliance department, but a lot of the compliance department director by the CSRC dispatched, so interpersonal interaction, the regulation performance is worrying.

  [52]The former approach[46].

  [53]The report says, Guotai Junan2008Net income brokerage business49.77Billion yuan, and the beginning of the year budget80Billion yuan, the completion rate was only62%The income to retail customers4543Billion yuan, while the budget is75Billion yuan, the completion rate of61%. And Guotai Junan Securities Investment Income2008Years of losses1.44Billion yuan, the completion rate-9%. In addition, Guotai Junan sales and trading department, Hongkong asset management company headquarters are not completed in early targets. See Xiao Yong: "Guotai Junan traced the sky high salary2008The annual per capita income amounted to100Million "," daily economic news "load2008Years2Month3Day.

  [54]Regardless of Guotai Junan Securities Company withdrawal32Billion yuan of salary and welfare costs is the current payment, in the provision of financial, becomes the asset management and workers, rather than the company and shareholder assets.

  [55]The former approach[35].

  [56]Financial executives of state-owned assets holding huge pay disputes, is not accidental. In other Chinese peace chairman Ma Mingzhe and company executives paid in2008Years has caused great concern to the market. According to the Chinese peace2007Annual report shows, China peace3Directors and senior executives2007Annual pre tax salary more than4000Million yuan, the tax paid for Ma Mingzhe6616.1Million yuan, equivalent to the daily income18.12Million yuan, refreshAShares of listing Corporation executive pay record. The company deputy general manager Liang Jiaju tax return4813Million yuan; executive director and general manager Zhang Zixin pre tax pay for4770.4Million yuan.

  [57]For example, President Obama has decided American, personnel of enterprises senior management to accept federal financial aid to set up large50Million annual salary cap.

  [58]China's "company law" article20Regulation, the shareholders of the company...... Do not abuse the rights of shareholders damage the interests of the company or other shareholders; shall not abuse the independent status of the company legal person and the limited liability of shareholders to damage the interests of creditors. Company abuses the rights of shareholders who causes any loss to the company or other shareholders, it shall bear the liability for compensation according to law.

  [59]The English"Do as we say, not as we do". Quoted from Cui Zhiyuan: "the theoretical background American twenty-nine States company law reform and the enlightenment to our country", "economic research"1996No.4Period.

  [60][Beauty]JamesMBuchanan, Gordon Tarlock: "the calculus of consent: Logical Foundations of constitutional democracy", translated by Chen Guangjin, Chinese Social Science Press2000Year edition, No.21Page.