20世紀80年代債務危機和信用危機后，西方銀行普遍重視信用風險管理，并由此催生了1988年的巴塞爾協議。該份協議的推出對國際金融體系的穩定和有效運行，以及建立國際銀行業的公平競爭環境等方面發揮了重要作用。但隨著銀行混業趨勢的出現，以金融衍生產品為代表的表外業務的蓬勃發展，其業務操作的復雜程度和投資組合的速度均與傳統銀行業務不可同日而語，這使得舊資本協議所確定的外部監管模式的不足日益明顯。作為國際銀行界的“游戲規則”，巴塞爾協議一直在爭議中不斷發展。最新的《巴塞爾協議Ⅲ》草案于2009年提出，并在短短一年時間內就獲得了最終通過，并將于此后的2010年11月在韓國首爾舉行的G20峰會上獲得正式批準實施。協議主要內容如下： 

The introduction 

 

In the 1980 s debt crisis and credit crisis, paid attention to by western Banks credit risk management, and thus led to the 1988 Basel. The agreement of the launch of the stability of the international financial system and effective operation, and establish a fair competition environment and other aspects of international banking has played an important role. But with the emergence of banking industry trend, represented by financial derivatives the vigorous development of the off-balance sheet business, the complexity of its operations and the speed of portfolio are compared with the traditional banking business, which makes the old capital accord the identified the lack of external supervision mode has become increasingly apparent. As the "game rules" of international Banks, the Basel rules have been growing in the dispute. 

 

I, the main content of the new Basel agreement and the impact on our country commercial bank risk regulation 

 

(1) the main content of Basel ii 

 

The latest Basel Ⅲ draft "in 2009, and in just a year have finally passed, and will be in the November 2010, the G20 summit held in Seoul, South Korea won approval to implement. Agreement the main content is as follows: 

 

Common equity/risk-weighted assets from 2% to 4.5%, the lowest core capital adequacy ratio requirement increased from 4% to 6%, the regulation standard time is in 2015, above the minimum requirements can also add 2.5% of common equity counter-cyclical buffer. 

 

In addition, the core capital adequacy ratio reached 6% of the standard, but less than 7% of the bank, shall implement the cautious policy of retained profits. For important Banks have systemic implications, there should be a greater loss of absorptive capacity, have higher standard of adequacy, specific plan is still under discussion. 

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Transition time: January 1, 2013 to achieve milestones, common equity/risk-weighted assets to 3.5%, the core capital adequacy ratio of 4.5%, ratio reached 8%. Since then, every common equity/risk-weighted assets and core capital adequacy ratio on the basis of 2013 increased by 0.5%. Countercyclical buffer ratios was started in 2016, increased by 0.625% per year, four years later reach the level of 2.5%. 

 

Basel Ⅲ is in recent decades for the biggest reform in the field of banking supervision. Central Banks and regulators hope these reforms can prompt Banks to reduce risky business, at the same time to ensure that Banks hold sufficient reserves, can not rely on government aid alone to deal with the possibility of financial crisis in the future. 

 

(2) the impact on commercial bank risk regulation 

 

1. The influence of the risk regulatory capital adequacy ratio of commercial bank 

 

At present China's banking regulators set by regulatory requirements to the requirements of the Basel III, and most Banks have to meet these requirements. 2010 NianZhongBao data show that China's large and medium-sized bank capital adequacy ratio more than 10%, the core capital adequacy ratio is over 8%, the average provision for coverage is more than 150%. So for domestic commercial Banks, the new bank regulation effect is not obvious. 

 

2. The regulatory effects on commercial bank risk regulation 

 

After the new Basel agreement, the China banking regulatory commission will continue to adhere to effective regulatory capital good practice, draw lessons from the international capital regulatory reform achievements, adjust and improve the system of domestic bank capital regulation (including quantity, quality standard, schedules, regulatory means, etc.), improve capital regulation effectiveness, to maintain long-term stable operation of the banking system in our country. 

 

Regulators in China and the relevant departments to communicate more, often the introduction of the latest regulatory concepts and measures, the CBRC will according to the Basel Ⅲ some indicators to strengthen Banks' liquidity management in our country. The Basel committee relaxed attitude, is bound to affect the attitude of the CBRC, alleviate the concerns of the market for banking regulation policy tightening. 

 

II, our country commercial bank risk regulation of legal analysis 

 

(1) our country commercial bank risk regulation of the law 

 

1. About the risk supervision of laws and regulations 

 

Of risk supervision of commercial Banks in China mainly has the banking supervision law laws and regulations, "the people's bank of China" and "commercial bank law", the three laws are the core of commercial bank supervision legal system. Among them, in 2003 by the banking supervision law, established the banking supervision of CBRC main body legal status, for the first time accepted the risk in the form of legal regulation, has been clear about the overall concept of risk supervision. This law on banking supervision and management of the target adjustment, the purpose of strengthening the risk supervision, at the same time also authorized the China banking regulatory commission for banking financial institutions shall abide by the principles of prudent management, establish the supervision and administration of banking financial institutions rating system and risk early warning mechanism. Also pay attention to the legal regulations to use market forces to risk status of the banking financial institutions to supervise, the banking financial institutions to the public information disclosure regulation. #p#分頁標題#e#

 

2. About the risk supervision department regulations and normative documents 

 

Domestic in recent years the bank's risk supervision increasing, introduced all kinds of files to constraints, the main file to see the table below: 

 

The main purpose of file name on time 

 

1 on the adjustment of banking market access management way and the procedure of decision ", the financial license management method "in May 2003 to adjust the power of examination and approval of a new branch, new business way of examination and approval, and senior management personnel qualifications approved by the way; Provisions of the banking regulatory commission (CBRC) exercise financial license issuance, change, seizure, revocation of power content, etc 

 

2 derivatives trading by financial institutions management interim measures "in February 2004 to standardize the management, financial institutions derivatives to effectively control the risk of financial institutions to engage in derivatives trading. 

 

3 "commercial bank capital adequacy ratio management method" in February 2004 from the capital adequacy ratio calculation, the power of the supervision and inspection of the China banking regulatory commission, for capital adequacy ratio of commercial bank information disclosure and so on several aspects has carried on the rules. 

 

Four commercial Banks and the internal measures of related transaction management and shareholders in April 2004, defines the scope of "related party", "related party transactions", and the related transaction management and legal liability provisions, legal norms and control the risk of associated business of commercial Banks and related party transactions. 

 

5 the trial measures on settling commercial Banks internal control evaluation in December 2004, norms and to strengthen the evaluation of the commercial Banks internal control, supervise and urge its further establish and improve the internal control mechanism. 

 

6 "commercial bank personal financing business management interim measures" in September 2005 against the risk of personal finance business regulation. 

 

7 supervision and management measures for the securitization of credit assets by financial institutions in November 2005, regulate the pilot securitization of credit assets, to promote financial institutions to carefully carry out securitization of credit assets, effective management and control of the securitization of credit assets business related risk, protect the lawful rights and interests of investors and relevant parties. 

 

8 "the China banking regulatory commission law work" normative legal work of the China banking regulatory commission in November 2005, improve the quality of legal and regulatory level in accordance with the law. #p#分頁標題#e#

 

9 the announcement of the people's bank of China (2005) no. 30 December 2005, the central bank is corporate bonds into the circulation of the inter-bank bond market related matters and promulgated the laws. 

 

10 "China banking guidance on implementation of the new capital accord" in February 2007 to steadily push forward the implementation of the new capital agreement in our country, promoting commercial Banks to strengthen risk management capacity, improve capital regulation effectiveness. 

 

11 the commercial bank credit risk exposure to the bank account classification guidelines "in October 2008 to regulate commercial bank account of the bank credit risk exposure classification work, promote the commercial Banks to improve credit risk management level. 

 

12 the internal rating system of commercial bank credit risk regulatory guidelines "in February 2007, clear large domestic Banks should use the internal rating method to measure the credit risk capital requirements. 

 

13 of the commercial bank credit risk slow-release regulatory capital measurement guidelines "in March 2008, the main solution to the implementation of internal risk rating method in the process of slow release tool management and technical problems of capital. 

 

(2) the lack of legal system of our country commercial bank risk regulation 

 

1. Risk supervision and control system is imperfect, risk early warning system is not established 

 

The bank risk management is a systematic project, it requires the close involvement of other factors, can really achieve the purpose of effectively reduce the bank risk. Why foreign commercial bank risk management can do better, its important reason is that they have a healthy and effective risk management mechanism. But, in the commercial bank of China, are generally lack of risk management mechanism, the specific performance in the risk management system is not sound, system can't be determined to carry out, monitoring mechanism is not effective. First, from the outside, the overall point of view, the legal system is not perfect, risk monitoring information system is not reasonable, there is no efficient financial risk early warning system. In the second place, from internal, the individual's point of view, imperfect corporate governance mechanism, risk internal control system is not sound, market discipline does not reach the designated position. First of all, the current situation in our country, based on market supply and demand information of real body is not yet clear, commercial bank information disclosure can not get effective market discipline. Secondly, from the point of information supply, even if the supply of listed Banks information is optimal in all commercial Banks, but still exist problems of bank risk should not be disclosed. Relative to the listed Banks, private Banks to supply information supply issues more prominent. Again, from the point of information demand, China's investment decision-making needs to creditors and investors to obtain and use information on the basis of market behavior motivation is not strong, the effect is not good, this is because the information supply problems of knock-on effects as well as China's property market, monetary market and capital market is still not mature enough. #p#分頁標題#e#

 

2. Risk management institutional differences 

 

Modern commercial bank system in our country has not really established, modern corporate governance structure is the fundamental questions still to be further solved, carry out effective risk management system of the legal system and market regulation also needs to be further perfected. In contrast, the western developed country commercial Banks in risk management experience, we can see that foreign Banks are generally in accordance with the strict legal procedure to form a joint-stock commercial Banks, their operational practices, with perfect property right system and effective incentive mechanism and constraint mechanism, especially with good corporate governance structure. The system advantages make foreign commercial Banks have higher risk control and management ability. 

 

3. The legal system of risk supervision level is too low 

 

The third pillar of Basel ii "market discipline" is the use of market for the bank's risk supervision, its method is a set of perfect information disclosure system, let the market participants to get information about the bank's risk profile and capital levels. Our country "the interim measures on information disclosure of commercial Banks" provisions of the scope of commercial bank information disclosure, including the financial and accounting reports, the condition of all kinds of risk management, corporate governance, the information such as the major issues of the year. In the provisions of article 28 in the disclosure of information does not provide real or concealing important facts to the financial and accounting reports of commercial Banks and the relevant responsible personnel, in accordance with the "financial illegal punishment method" to punish. In March 1999 the state council promulgated the "financial illegal punishment method" of article 12, the financial institution shall not provide false or withhold any material information of the financial and accounting reports, statistics report. Financial institutions to provide false or withhold any material information of financial and accounting reports, statistics report, given a warning, and be fined 100000 yuan of above 500000 yuan of the following; The directly responsible for senior managers of financial institutions give removed until removed to disciplinary action, the directly responsible person in charge and other directly responsible personnel give until expelled give disciplinary action; If the circumstances are serious, shall be ordered to stop business operations for rectification or revoke the financial institutions license to conduct financial business; If the case constitutes the crime of providing false financial accounting report crimes or other, shall be investigated for criminal responsibility according to law. Above clause does not comply with the disclosure of the financial and accounting reports the behavior of the punishment is given clear stipulation, but to provide false or withhold any material information of all kinds of risk management, internal governance, the information such as annual major matters of the punishment of the relevant personnel, is the lack of laws and regulations for the basis. This kind of situation will lead to the law enforcement effect cannot achieve the ideal effect, so use the third pillar of Basel ii market constraints of risk regulation would not be able to play its role. #p#分頁標題#e#

 

III, consummates our country commercial bank risk supervision legal system 

 

(1) perfect risk regulatory legislation work 

 

1. Improve the legislative form and legislative content 

 

First of all, the reference in the legislation form the Basel core principles evaluation method "in" necessary standards "and" additional standard "the way of combining do our utmost to finish can adapt to all kinds of situation of dynamic banking supervision framework of laws and regulations. "Standard" necessary to determine whether a country's banking supervision effective must have a minimum standard, "additional standard" is to effectively strengthen the regulation of various elements, is a target countries to improve the banking regulation act. Such legislation form, can realize continuous dynamic adjustment, and can be more consistent, more fully reflect the current state of the reality and the continuous change of market supervision and will not result in a phase of the regulatory standards of the unsteady situation, the regulatory framework of laws and regulations basically reflects the incentive compatibility regulation concept: one is in the process of access regulation can be used as a regulatory authorities for Banks market access, the examination and approval according to a new outlets; 2 it is to become a daily in the regulatory process for bank regulation grading, on-site inspection frequency and range of reference and applicable law; Three is to be able to decide whether to take timely corrective action and other market exit measures according to, for our bank regulators in a future regulatory legislation has reference significance in practice. 

 

Second, in the legislation content to further make clear the regulation idea of incentive compatibility, take the market as the direction, on the basis of the regulators and Banks good governance institutions, with comprehensive risk management as the core of banking supervision legal system. Completely liberalized conditions in the industry, it is based on the improve the overall competitiveness in China's banking industry, maintain and protect the safe condition, our country banking supervision departments must focus on national conditions, follow the "in place and not offside, ready to fill" the principle of accurate make their location, on the basis of actively and steadily absorbing represented by the new "core principles" of international banking supervision way and ripe experience, and advanced on the basis of the process of financial reform and the need to continue to improve the current bank's risk supervision laws and regulations, gradually improve, take the market as the direction to regulators and Banks (group) the good governance institutions, on the basis of comprehensive risk management as the core of banking supervision legal system, to meet the requirements of economic development, building a harmonious society to provide more powerful, more safety and reliable financial support. #p#分頁標題#e#

 

2. The regulations formulated and abolish must pay attention to the coordination and complete legal system 

 

Overall planning is the legal regulations and rules makers focused on in the process of legislation. Due to the business risk supervision of law in China only three parts: "the banking supervision law", "commercial bank law" and "the people's bank of China," administrative rules and regulations are rarely, the main reason for the regulation legal system internal dissonance from a series of regulatory rules and regulations formulated by the banking regulatory authority and files. Bank regulators to solve this problem, on the one hand, to planning need to formulate normative documents, the regulatory authorities to discuss, the planning mechanism formed between; The discovery of "on the other hand, should abandon" he made the practice of "the law". This approach for both regulators, law enforcement is not convenient for commercial Banks to consciously abide by the law is not convenient, but also may cause disharmony between relevant regulations and contradiction between each other. This is common at present in our country about risk regulatory legislation, need to focus attention. To complete the legislation and formulate the plan of the bank regulation rules, vision need makers, grasp the trend and the trend of the domestic financial system reform, the developed and international institutions advanced international laws and regulations and the specific content of the chest. 

 

(2) perfect the risk supervision content, adjust the regulatory focus 

 

1. The overall risk regulation 

 

Risk is always throughout and accompanied by exit from market access to the whole process of commercial Banks. Therefore, in the bank's risk supervision of legal system and practice, the whole process must be focused on financial institutions use for risk assessment, risk control and risk management, and according to the change of economic environment, looking for risk probability of the highest business areas and links, and more attention. Accurate bank risk assessment and early warning is the key of the risk supervision, so you must speed up the construction of our country's risk assessment and early warning system for banking institutions for accurate risk assessment system, and then identify the bank should first accept checks, which Banks should focus on inspection, in order to find the problem as fast as possible, and to select effective measures as soon as possible, do preventive, will be nipped it in the bud. Among them, especially to raise the level of regulation of interest rate risk. According to the new Basel capital accord the interest rate risk of guiding principle, "if regulators think, Banks' holdings of capital and interest rate risk, you can require Banks to reduce the interest rate risk, or the other of specific capital, or the two measures at the same time." Bank account of the interest rate risk is the key of the potential risk of Chinese commercial Banks, the bank regulators in China in the future to further strengthen the supervision of interest rate risk management. #p#分頁標題#e#

 

2. To strengthen the supervision of the governance structure and internal control 

 

Internal control is a kind of self-discipline behavior of financial institutions, commercial bank internal control mechanism is to examine their own business mode of internal supervision, to ensure the safety of commercial Banks in accordance with the law, the steady effective management is very necessary, is also one of the important ways to effectively guard against operational risks. Whether commercial Banks has a sound internal control mechanism, is the premise of effective regulatory regulators, it is also one of the content of the regulatory supervision. According to the requirements of the Basel new "core principles", the bank shall have its business scale and in charge of to the matching degree of internal control, should include a specific provision of authority and responsibility, bank commitment, payment and all assets and liabilities accounting functions of separation, cross check the procedure above, asset protection, improve the independence of internal audit, check the control function and the function of compliance with laws and regulations. The main body in banking supervision should be to the improvement of the commercial Banks internal control system is put forward a standardized rules requirements, formulate certain standards, require all Banks regardless of its size, should according to their table and the nature of the off-balance sheet business, complexity, and the degree of risk management to establish effective internal control system, the system must be according to the change of business environment and business situation react accordingly, and regulate Banks to implement the supervision mechanism. At the same time, in the legal system of risk supervision, should draw lessons from the new "core principle", the relevant provisions of the specific regulatory body should be regulated commercial Banks to implement internal control mechanism is effective or not. Regulators must be satisfied to see: commercial Banks established on capital adequacy, credit risk, market risk, liquidity risk, operational risk, interest rate risk to the bank account of the risk management policies and procedures. 

 

(3) improve the legal system related to the risk supervision 

 

1. The concept of regulatory change 

 

The new agreement has an important regulatory concept, namely incentive compatibility. The so-called incentive compatibility of financial regulation, emphasizes the financial regulation can not only from the target of regulation set regulatory measures, while the financial institutions shall be referred to the management goal, the financial institutions of internal management and market constraints into the category of regulation, guide the two forces to support to achieve the goal of regulation. Only according to the regulation goal, not to consider the interests of financial institutions and the regulation of the development, is the basic characteristics of incentive incompatibility of regulation. Incentive incompatibility, inevitably forced commercial Banks to pay a regulatory compliance costs, loss of profit to exploit the new market opportunities, and often produces a serious moral hazard problem. Regulators because we can not change in a timely manner to the demand of financial markets to make timely response, and therefore the inhibiting factors of financial institution innovation. Therefore, the development of the global financial regulatory framework, has been more and more pay attention to the incentive compatibility, emphasis on financial institutions business goals are consistent with the goal of regulators and coordination. Federal reserve chairman Alan greenspan, the regulation of incentive compatibility across a brief definition, that is: incentive compatibility regulation should be in accordance with, rather than the profit maximization goal against investors and bank manager. The so-called incentive compatibility regulation, is actually more introduction of market mechanism in financial regulation. From international, before the 1980 s, the relationship between the market mechanism and government regulation in fact understood as a kind of parallel alternative relations, the strengthening of the financial regulatory power means that weaken the strength of the market mechanism, to form the financial supervision of financial markets repressive features. #p#分頁標題#e#

 

Along with the development of the global market trend, the concept of incentive compatibility regulation, financial regulation is no longer the replacement market, but to strengthen financial institutions, the micro foundation of financial regulation is not to replace the market mechanism in certain scope, but only from the perspective of specific involved in financial operation, promote the stable and efficient operation of the financial system. The concept of incentive compatibility regulation, in the new Basel capital accord is reflected, for example, the new capital accord provided for financial institutions to choose, the difficulty of different risk management system, at the same time, those who choose the difficulty bigger risk management system of financial institutions, the need to configure the capital generally less, so that more active in the financial market competition. Under the new capital accord framework, financial institutions in the choice of internal risk management framework has more autonomy and flexibility, the regulator can also according to the business complexities of different financial institutions, management level and performance to determine the different regulatory requirements, so as to create conditions to improve the efficiency of supervision. At present, our country in the legislation regulation principle of incentive compatibility. Regulators should transform ideas, in the process of execution of supervision legislation and supervision should fully consider and improve it. 

 

2. Set up legal system of information disclosure 

 

To improve the process of our country commercial bank information disclosure system, regulators should pay attention to the prospective setting norms, fully considering the latest international trends, to maintain a certain advanced, avoid blindly follow suit, always lagging behind the situation. Such as the Basel agreement is more and more attention in recent years the market risk and operational risk, more and more importance to the role of the internal system, we should also corresponding requirement in information disclosure in the specification more emphasis on the description and evaluation of internal systems. In addition, the rule is not only a simple problem of information disclosure, also reflected the financial authorities regulation strategy, regulatory policy thinking and dynamic. We can choose our country at present is urgent and important aspects, such as the internal credit risk management techniques, such as a destination for the information disclosure to international practice, the current impetus to the development of the corresponding bank business and technology, influence other aspects of the improve step by step. 

 

(1) to establish unified commercial bank information disclosure guidelines 

 

The disclosure of the unified standard is the important guarantee of comparable disclosure of information. Given the current our country commercial bank information disclosure regulations referring to numerous laws and regulations, the author thinks that, the China banking regulatory commission is necessary to formulate a unified commercial bank information disclosure guidelines. Guide should draw lessons from the practice of the Hong Kong monetary authority, specifically stipulated as much detail as possible the project, the format and method of information disclosure, the commercial Banks in the information disclosure has a unified operation guidelines, enhance the comparability of different Banks to disclose information, also avoid repetition and commercial Banks to borrow law conflict to escape information disclosure obligations, and is advantageous to the regulatory authorities to monitor the information disclosure of commercial Banks. #p#分頁標題#e#

 

(2) the improvement of information disclosure content 

 

When making the disclosure of the unified guidance, should notice the prospective of law and the continuity, in view of the present interim measures for the commercial bank information disclosure in our country and the gap between the new Basel capital accord, perfect the relevant regulations, the original set of more detailed and specific disclosure requirements, in order to improve the level of our country commercial bank information disclosure. A unified information disclosure guidelines shall not only require disclosure of information, qualitative and quantitative information disclosure: at the same time should be according to the actual situation of commercial bank, the commercial Banks should disclosure of financial data, index, specific content and calculation standards, should be disclosed in the commercial bank accounting statements of the project description should give details of the format. 

 

(3) improvements on accountability mechanisms 

 

Legal liability is an important guarantee of law enforcement mechanism. For violation of information disclosure system will not be investigated for legal responsibility, don't give the law, it can maintain the implementation of the information disclosure system, not the protection of the interests of depositors. As mentioned earlier, our country the current liability mechanism to deterrence to commercial Banks, commercial Banks don't disclose information according to the rules, especially the delay in the condition of the disclosure of information is not strong. The author suggested the regulation of our country follow Singapore banking law, illegal behaviors of commercial Banks in a constant state of, every day is a certain amount of fine. 

 

Conclusion 

 

Commercial banking is a special financial industry, protect the safety of the banking system, effective supervision is a important practical significance. Our country commercial bank risk regulation, is still in the exploratory stage, there exist many problems in practice. Commercial bank's risk supervision system in our country at present there exist a series of problems such as unclear regulatory agencies purview division, to solve these problems, combining with the Basel agreement, the legal system of our country should perfect the risk supervision, pay attention to the construction of commercial Banks internal control system, strengthen the supervision of regulatory authority and strengthen market discipline, etc, to perfect the legal system of commercial bank risk regulation.