A Legal Study on the Exiting Mechanism for the Financial Institutions.

• Main Authors: OuYang, Wen-Hwang, 歐陽文皇
• Other Authors: 陳猷龍
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/68142766301127012088

碩士 === 輔仁大學 === 法律學研究所 === 97 === Abstract Finance is the lifeblood of a nation’s development. There are many depositors in financial institutions. Therefore, if financial institutions lack the ability of paying, it will cause profound chain influence. Since Act of the Establishment and Administration of the Financial Restructuring Fund passed in 2001, the official authorities have taken over 56 financial institutions with negative number of net value based on the Act and made them exit from the market successfully. And, the financial restructuring fund indeed devoted to stabilizing our financial order. In order to strengthen security depositors’ right and fulfill insurance responsibility, The Deposit Insurance Act was extended from 26 to 52 in January, 2007. Moreover, the Banking Act of The Republic of China has been revised in December, 2008, and added prompt corrective measures. Official authorities established the financial standard with capital adequacy ratio, and they have the capability of interrupting problem financial institutions in advance. And, the competent authority also modifies the regulations of conservatorship and receivership related to financial institutions exiting the market; therefore, it can promote the maintenance of financial order. The paper illustrates the exit of financial institutions from the aspects of The Banking Act, The Agricultural Finance Act, The Act of the Establishment and Administration of the Financial Restructuring Fund, and The Deposit Insurance Act. Moreover, the paper also deals with regulations of laws and the operation of system, and analyzes the uncertainty of laws and the difficulty of pragmatic ways, and proposes conclusion and suggestions to make the exit of financial institution of financial institutes more complete. There are six parts in the paper and the exiting mechanism of financial institutions as subjects. Chapter 1 overviews the motivation, purpose, method and frame of the study and constructs step by step the content and direction of the whole thesis. Chapter 2 is about the basic law of exit of financial institutions. In the chapter, the paper deals with our nation’s financial laws such as The Banking Act , The Credit Cooperatives Act , The Agricultural Finance Act, The Act of the Establishment and Administration of the Financial Restructuring Fund , The Deposit Insurance Act , The Financial Institutions Merger Act, The Bankruptcy Act. Moreover, there are some analyses about the range of financial institution in The Banking Act, exit regulations’ executing in The Agricultural Finance Act and The Deposit Insurance Act. Chapter 3 is about the conservatorship and receivership of financial institutions. It deals with meanings and aims, property, and proceedings of the conservatorship and receivership of financial institutes. Moreover, it analyzes the relevant problems involved laws, and discusses the enactment of laws of financial institutions debt receivership, the assignment of receivership member, the interest of the deposit insurance compensation, and the order of distribution of receivership creditor’s rights. Chapter 4 is about the financial restructuring fund and exit of financial institutions. In the chapter, the paper explains the background, order, property, organization, establishment, proceeding, expenditure, and operation of financial reconstruction funds. Moreover, this chapter also probes several problems including the financial restructuring fund for financial institution that is negative to net value, the loss is more than one third of capital, if need to deduct recognizes according to The Financial Institutions Merger Act separable 5 years lists sells loss of the non-perform loan, if it is legal that the special fund of financial restructuring fund lend to The Deposit Insurance Corporation, non-compensation to non-deposit debts, the event of indemnification of requisition to illegal people and the sale to approved case, and allotment of requisition indemnification to illegal people, the retirement compensation of investor, the management with internal financing when the credit department of farmers’ association yields to banks , the money paid for shares compensation for cooperative credit society member, the regulation of non-unpremeditated crime responsibility of the member of a council and manager, the subordinated financial debt possessor requested that the advanced redemption and offsets, and financial institution reduction of capital to paying off of the subordinated financial debt possessor. Chapter 5 is about the deposit insurance and exit of financial institutions. It discusses the legal problem about the function and system of deposit insurance, the resource and application of deposit insurance fund, and some relevant problems of fulfillment of deposit insurance responsibility. Moreover, this chapter contains the regulations of Japan Deposit Insurance Law, Korean Deposit Protection Act and Canadian Deposit Insurance Corporation Act and other some main points, inclusive of adjustment of deposit insurance corporation organization, the regulation of deposit insurance taking force application, grouping of government organizations deposits, staff retires discharges with severance pay the pension, the security of non-corporation deposits, the range of insurance included foreign currency deposits, an independent deposits insurance institution should be established to protect the deposits of the credit department of farmers’ and fishers’ association, regarding the debt without conform mutuality for offset, advising it could compensate the net amount of deposits with the agreement of depositor, or some related mechanisms for special offsetting should be stipulated in the regulations. In addition, regarding the systemic risks stipulated in the proviso of the 2nd item of the 28th article of Deposit Insurance Act, the essential condition of fact should be regarded carefully or stipulated in the Act. Chapter 6 is the conclusion and suggestion. It will conclude the content of abovementioned chapters and propose some viewpoints to summarize the whole paper.