商业银行行政接管的法律规制研究

The Administrative Transition of Commercial Banks constitutes an administrative enforcement measure, rather than a novel administrative action. It emerged concomitantly with the promulgation of the Commercial Bank Law of China, and is characterized by its compulsory, non-punitive, non-dispositional, and temporary nature. Given the unique characteristics of commercial banks, there has only been one instance of administrative receivership of a commercial bank since the inception of the system in 2019. Consequently, the provisions regarding administrative receivership in the Commercial Bank Law have remained largely unamended. The case of Baoshang Bank exposed the existing deficiencies within the legal framework governing the administrative receivership of commercial banks. The extant legal regulation of administrative receivership in commercial banks still suffers from several shortcomings, such as incomplete definitions of responsible entities, unclear statutory conditions for receivership, and ambiguous delineation of the duties of the transition organization. These deficiencies result in a lack of legal guidance during the administrative receivership process, necessitating reliance on international precedents to achieve the objectives of receivership, which stands in contradiction to the principle of establishing a rule-of-law society. To address these issues, it should clearly take over the implementation of the main body, standardize the qualifications of the takeover team members, and establish a robust mechanism for accountability within the takeover team. The responsible entities should be confined to the National Financial Supervisory Administration and the Deposit Insurance Fund Management Agency. When forming a takeover team, the qualifications of its members should be regulated in both positive and negative aspects to ensure the professionalism and impartiality of the team. The conditions for the transition should be clarified and linked to the commercial bank rating system. Based on the six detailed situations of the “credit crisis,” “serious lack of asset quality” and “serious lack of liquidity” will also be subdivided, and administrative handover can be carried out immediately if it is evaluated as an acceptable grade in connection with the existing rating system formed by the Commercial Bank Supervisory Management Rating Method of the Banking and Insurance Business Supervision and Management Committee.