金融部门评估规划（Financial Sector Assessment）手册：Chapter 9 Assessing the Legal Infrastructure for Financial Systems.pdf

Financial Sector Assessment:A Handbook bank laws,banking insurance and capital market laws,etc.),as well as the broader lega framework underpinning the payments system,government debt management,and other infrastructure elements (such as insolvency regime,creditor and land rights,corporate governance,and consumer protection).The scope and coverage of those components of the legal framework are outlined below. 9.1.1 Central Banking Law The central bank law should provide for the establishment,organization,powers,and duties of the central bank.with a clear definition of its ultimate obiectives.and should tonomy to impleme policy.The ary objective usually to ensure pric sound banking and pay- ment systems.The law must also provide the central bank with the nece ary instrument and powers to enable it to achieve its objectives.Extraneous powers and duties are to be avoided,and the bank ought to be protected from outside interference in its operations and be assured of full operational autonomy The law should also stipulate the role of the central bank and that of the government in determining foreign exchange policy,for example,who decides on the country's exchange 9 regime,who dere rmines the exchange rate,and who is responsible for fore exchang .The responsib the control a e central b ation reserves ne clea Coordination between the central bank and the Ministry of Finance should be pro vided for in the law.In addition to the bank's duty to act as the fiscal agent of the govern ment,the law would strive to provide the government with a risk-free depository,with a mechanism for consultation and coordination in the formulation of a country's macro- economic policies,and with assistance in defining the institutional relationship between monetary and fiscal operations. Modem tral bank credit to go the central ba per m non-centra lbanking functions.For prop tability an to protect the ability of the central bank to ach opmental and other social policy objectives should be financed through the government's budget.The law should also place limits on government lending and should make trans. parent the conditions when that type of lending is permitted. While the law should grant appropriate operational independence to a central bank,it must also specify the arrangements for its accountability and assurances of integrity.The ts include those for internal auditing,auditing and publishing its tion services, and making available report to designated publi authority on the conduct of monetary policy and on its per formance in achieving its objectives. 9.1.2 Banking Law The banking law typically provides for the formation and operation of banks and,some times,nonbank financial institutions.The law should deal with the requirements for the opening of a bank;the minimum share of capital;the fit-and-proper criteria for sharehold- 224

224 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 bank laws, banking insurance and capital market laws, etc.), as well as the broader legal framework underpinning the payments system, government debt management, and other infrastructure elements (such as insolvency regime, creditor and land rights, corporate governance, and consumer protection). The scope and coverage of those components of the legal framework are outlined below. 9.1.1 Central Banking Law The central bank law should provide for the establishment, organization, powers, and duties of the central bank, with a clear definition of its ultimate objectives, and should grant the central bank autonomy to implement monetary policy. The primary objective of a central bank is usually to ensure price stability, as well as sound banking and payment systems. The law must also provide the central bank with the necessary instruments and powers to enable it to achieve its objectives. Extraneous powers and duties are to be avoided, and the bank ought to be protected from outside interference in its operations and be assured of full operational autonomy. The law should also stipulate the role of the central bank and that of the government in determining foreign exchange policy, for example, who decides on the country’s exchange regime, who determines the exchange rate, and who is responsible for foreign exchange operations and reserves management. The responsibilities of the central bank in matters such as exchange control and the management of international reserves need to be clear. Coordination between the central bank and the Ministry of Finance should be provided for in the law. In addition to the bank’s duty to act as the fiscal agent of the government, the law would strive to provide the government with a risk-free depository, with a mechanism for consultation and coordination in the formulation of a country’s macroeconomic policies, and with assistance in defining the institutional relationship between monetary and fiscal operations. Modern central bank laws limit central bank credit to government and do not permit the central bank to perform non–central banking functions. For proper accountability and to protect the ability of the central bank to achieve its monetary policy mandate, developmental and other social policy objectives should be financed through the government’s budget. The law should also place limits on government lending and should make transparent the conditions when that type of lending is permitted. While the law should grant appropriate operational independence to a central bank, it must also specify the arrangements for its accountability and assurances of integrity. The arrangements include those for internal auditing, auditing and publishing its accounts, providing public information services, and making available central bank officials to report to designated public authority on the conduct of monetary policy and on its performance in achieving its objectives.1 9.1.2 Banking Law The banking law typically provides for the formation and operation of banks and, sometimes, nonbank financial institutions. The law should deal with the requirements for the opening of a bank; the minimum share of capital; the fit-and-proper criteria for sharehold-

Chapter 9:Assessing the Legal Infrastncture for Financial Sstems and owners of banks;the provisions with respect to terminatin prudentia ks to inform tion on their activities regularly to the banking regulator.The law should also deal with distressed banks and with the power of the regulator to implement a range of remedial measures,to withdraw a license,to impose new management,and to ensure orderly liq- uidation and restructuring with the goal of maintaining financial stability.In addition the law should deal with issues of confidentiality and hank secrecy Anti-monev-launder ing measures are usually enshrined in separate legislation.but this legislation should be closely linked to the banking law framework.The lega of hankin already been conside ed in detail in ch oter 5.The lega and institutional frame work for anti-money-laundering activities and for countering the financing of terrorism are covered in chapter 8. 9.1.3 Payment Systems Efficient payment systems are critical to the effective functioning of a financial system Robust payment systems that are resistant to systemic and credit risk are an essential requirement for maintaining and promoting financial stability.Furthermore,in develop 9 ing countries,an efficient and reliable payment system infrastructure constitutes an essen tial factor in ating a dyr u In n ing an ystem sms are provided for by way ofc directives rather tha Increasingly,however,t e successful operation of paym t systems ca raise quit diffic issues,and a proper legal basis for such systems is desirable.The legal basis should provide for a variety of systems,including noncash methods of payment such as those relying on electronic debit cards and credit cards.Different types of clearance systems- such as paper-based and electronic clearing and settlement systems that are based on multilateral netting,paper-based gross settlement systems,same-time (intraregion)payment systems ems,and"swift-basedre o be vided for Is of c iali ,supervision,and netting aloneeiobeinoT porated n the legislatio Finality of payment and zero hour rule provisions are important to ensure the safety and soundness of the payment system.These items ought to be provided for in the law The banking law should also provide that,although banks cannot be liquidated without the consent or knowledge of the central bank.the fact that the payment system alsd includes other participants whose liquidation cannot be orchestrated by the central bank requires clear and express provisions in the law that provides for the zero hour rule. 9.1.4 Government Debt Management Govemment play an impo rtant role in both developed and developin nd the can be table financial system.The legal regim s subje oth the primary and second ary market for the securiti T he right and obligations of dealers;the procedures for public auctions,maturities of bills,and reg- 225

225 Chapter 9: Assessing the Legal Infrastructure for Financial Systems 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 ers, managers, directors, and owners of banks; the provisions with respect to terminating licenses; the powers of banks to accept deposits and to carry on banking business; and the prudential supervision of banks, including the obligation on banks to furnish information on their activities regularly to the banking regulator. The law should also deal with distressed banks and with the power of the regulator to implement a range of remedial measures, to withdraw a license, to impose new management, and to ensure orderly liquidation and restructuring with the goal of maintaining financial stability. In addition, the law should deal with issues of confidentiality and bank secrecy. Anti-money-laundering measures are usually enshrined in separate legislation, but this legislation should be closely linked to the banking law framework. The legal aspects of banking supervision have already been considered in detail in chapter 5. The legal and institutional framework for anti-money-laundering activities and for countering the financing of terrorism are covered in chapter 8. 9.1.3 Payment Systems Efficient payment systems are critical to the effective functioning of a financial system. Robust payment systems that are resistant to systemic and credit risk are an essential requirement for maintaining and promoting financial stability. Furthermore, in developing countries, an efficient and reliable payment system infrastructure constitutes an essential factor in creating a dynamic market economy. In many developing countries, payment system mechanisms are provided for by way of central bank directives rather than by law. Increasingly, however, the successful operation of payment systems can raise quite difficult issues, and a proper legal basis for such systems is desirable. The legal basis should provide for a variety of systems, including noncash methods of payment such as those relying on electronic debit cards and credit cards. Different types of clearance systems—such as paper-based and electronic clearing and settlement systems that are based on multilateral netting, paper-based gross settlement systems, same-time (intraregion) payment systems, electronic real-time gross settlement systems, and “swift-based terminal” systems—need to be provided for. Issues of confidentiality, supervision, and netting also need to be incorporated in the legislation. Finality of payment and zero hour rule2 provisions are important to ensure the safety and soundness of the payment system. These items ought to be provided for in the law. The banking law should also provide that, although banks cannot be liquidated without the consent or knowledge of the central bank, the fact that the payment system also includes other participants whose liquidation cannot be orchestrated by the central bank requires clear and express provisions in the law that provides for the zero hour rule. 9.1.4 Government Debt Management Government securities usually play an important role in both developed and developing country economies, and the management of those security markets can be crucial for ensuring a robust and stable financial system. The legal regime that deals with this subject should provide for both the primary and secondary market for the securities. The rights and obligations of dealers; the procedures for public auctions, maturities of bills, and reg-

Financial Sector Assessment:A Handbook istrat that should be covered in the law. The law needs to provide a clear legal basis for the issue of debt and the statutory designation of the authorities that are empowered to manage government debt.The law that provides for the issue of government securities must contain sufficient provisions to with and procedures tha or scriples The law should including those in book-entry form.The law must contain procedures and rules to establish ownership,trans fer,and final settlement of debt by the government on the basis of book-entry or scripless form.It is also important for the law to recognize electronic evidence in a court of law to prove ownership and to ensure the legality of transactions affecting rights of parties. 9.1.5 Capital Markets Laws to establish a securities markets and stock exchanges play a key role in facilitat- 9 ing the providing of financing for domestic investment.Misuse of securities markets has resulted in the need for strict rules governing(a)the issue of securities to the public;(b) saG功次包 nd ie (c)the op sto k :(d) kers,and other persc red in the s s ind stry;(e publicly listed companies.A key component of the capital market is the creation and trading of asset-backed securities.which play a critical role in effective risk management by financial institutions and in strengthening access to finance by creating liquidity However,securitization transactions call for a sophisticated system of laws on secured transactions,negotiable instruments,and creditor rights,as well as effective enforcemen ed in box 9.1.Legal a rities rkets regulati IOSCOobjectives and principles,are discussed in chapter5 9.1.6 Insurance Insurance needs to be regulated by law and regulations that support the development of the sector and that provide adequate protection to policyholders while containing claims for insurance fraud.The insurance laws should specify the powers and responsibilities of the regulator:the conditions for the formation and registration of companies:disclosure requirements:prudential supervision:management of distressed insurers;and provisions with respect to pavment of premiums.events of default.and reserves.legal aspects of insurance e supervision are discussed in detail in chapter 5,in the context of the IAIS Ins nce Core Principles The development of insurance business from repres ulations by government in many owincome coutrie.Those regultions have incudd the creation of state-owned insurance companies,sometimes with a monopoly over all insurance busi ness or for the benefit of state-owned business of state-owned enterprises.In addition, the regulations have included measures (a)to discourage entry by foreign companies, 226

226 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 istration and transfer of ownership; and the responsibilities of agent banks are all topics that should be covered in the law. The law needs to provide a clear legal basis for the issue of debt and the statutory designation of the authorities that are empowered to manage government debt. The law that provides for the issue of government securities must contain sufficient provisions to govern the issuance, transfer, and redemption of those securities. To avoid a legal vacuum, those provisions that deal with “physical securities” need to be reviewed and replaced with new rules and procedures that cover book-entry or scripless securities. The law should provide for registration, structure, and settlement, including those in book-entry form. The law must contain procedures and rules to establish ownership, transfer, and final settlement of debt by the government on the basis of book-entry or scripless form. It is also important for the law to recognize electronic evidence in a court of law to prove ownership and to ensure the legality of transactions affecting rights of parties. 9.1.5 Capital Markets Laws to establish a securities markets and stock exchanges play a key role in facilitating the providing of financing for domestic investment. Misuse of securities markets has resulted in the need for strict rules governing (a) the issue of securities to the public; (b) the registration and trading of securities; (c) the operation of stock exchanges; (d) the regulation of dealers, brokers, and other persons involved in the securities industry; (e) the strict requirements for prospectuses as well as for disclosure; and (f) the operation of publicly listed companies. A key component of the capital market is the creation and trading of asset-backed securities, which play a critical role in effective risk management by financial institutions and in strengthening access to finance by creating liquidity. However, securitization transactions call for a sophisticated system of laws on secured transactions, negotiable instruments, and creditor rights, as well as effective enforcement systems, as outlined in box 9.1. Legal aspects of securities markets regulation, drawing on IOSCO objectives and principles, are discussed in chapter 5. 9.1.6 Insurance Insurance needs to be regulated by law and regulations that support the development of the sector and that provide adequate protection to policyholders while containing claims for insurance fraud. The insurance laws should specify the powers and responsibilities of the regulator; the conditions for the formation and registration of companies; disclosure requirements; prudential supervision; management of distressed insurers; and provisions with respect to payment of premiums, events of default, and reserves. Legal aspects of insurance supervision are discussed in detail in chapter 5, in the context of the IAIS Insurance Core Principles. The development of insurance business has also suffered from repressive regulations by government in many low-income countries. Those regulations have included the creation of state-owned insurance companies, sometimes with a monopoly over all insurance business or for the benefit of state-owned business of state-owned enterprises. In addition, the regulations have included measures (a) to discourage entry by foreign companies

227 Chapter 9: Assessing the Legal Infrastructure for Financial Systems 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 (b) to set premiums, (c) to control the terms and conditions of offered policies, and (d) to require insurance companies to invest their reserves in low-yielding assets or in social projects of various forms. In many cases, the imposition of minimum local retention ratios (thus discouraging reinsurance with international companies or markets) or the mandated use of a state-owned reinsurance company has acted as an additional constraint on the development of insurance. Furthermore, insurance business in developing countries often suffers from widespread mistrust between insurance companies and their customers. To protect against fictitious claims and insurance fraud, insurance companies frequently include clauses that limit their liability in cases where material information was not provided at the time an insurBox 9.1 Legal Framework for Securitization Securitization is achieved through the creation of asset-backed securities, which are capital market instruments that represent debt, equity, or hybrid interests in a pool of financial assets, which most often are loans (secured or unsecured), or other evidences of indebtedness (such as receivables). A pool of assets is formed and sold in an economic and legal sense to a special purpose vehicle, which then issues securities backed by the asset pool. Securitization permits the shifting of risk from one category of financial intermediaries (usually banks or commercial financial institutions that originate loans or debt instruments), to other financial intermediaries and investors (usually participants in the public or private capital markets). The development of asset-backed securities requires a sound and vibrant commercial finance sector and effective and efficient laws and institutions in the areas of negotiable instruments, secured transactions, and creditors’ rights generally. In addition to efficient and reliable enforcement of contracts representing commercial indebtedness, the creation of asset-backed securities requires: 1. A sophisticated secured transactions law that clearly defines the rights and responsibilities of the parties with respect to the collateral in the event [that] the underlying debt is not paid in time 2. A system of laws relating to the creation, transfer, and enforcement of negotiable instruments by financial intermediaries 3. A reliable and effective system of enforcing commercial indebtedness 4. Laws permitting the transfer of secured and unsecured loans and the transfer and assignment of collateral and rights therein 5. Laws permitting the creation and regulation of special purpose financing vehicles with the purpose of isolating and clearly defining the financial risks of pools of assets held by such vehicles, and ensuring the transparency and accountability of the vehicle 6. Laws and regulations relating to governance of financial institutions and special purpose vehicles, which not only ensure fairness, transparency and accountability, but [also] impose appropriate fiduciary standards 7. A comprehensive system of accounting and reporting that permits timely and accurate identification, assessment, measurement, and management of risks involved in the creation of the indebtedness and its transfer of interests in the debt; and the ownership, management, and governance of the special purpose vehicles, as well as a system for assessing and managing the risks of off-balance sheet financial structures from the perspective of commercial financial institutions [that are] originating, holding, or participating in the indebtedness 8. A clear system of regulation and disclosure in the capital markets that permits full and fair assessment of the risks involved in purchasing and holding an undivided interest in a pool of financial assets 9. A system of accounting principles and rules that permit a consistent understanding, assessment, and measurement of the prices, values, and risks involved in the transfer and pooling of financial assets for all participants 10. A system of tax and related laws [that] may be necessary to ensure that the economic effects of securitization are consistent with economic or other policy imperatives of the jurisdiction