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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
China has cut a conspicuous economic figure as a new member state of the World Trade Organization. Enjoying brisk economic growth over nine percent a year, China has undergone a series of economic and financial reforms since it adopted the reform and open door policy in the late 1970s. However, China might be trapped in a Quagmire of snowballing. debts and non-performing assets of banks and state-run companies.
The banking system in China, originally under one umbrella of the Central Bank of China, has been ramified into policy financing, commercial banking, securities and insurance businesses. Ever since 1983, state-run companies had to seek other banking sources than the traditional government treasury. Based upon the "separation of government and enterprise" and "no more gratis" principle, the investment to public entities changed its sources from the government budget to bank borrowings. In 1993, the China Supreme Congress resolved the reform policies,. including restoration of financial markets, rationalization of banking organizations, separation of commercial banking from the public sector financing.
Notwithstanding such financial reforms, the government, in particular, the local governments, did not cease to wield their powers in lending process, and inevitably brought in increasing volume of problem loans.
The imperfect banking and finance related laws and regulations contributed somewhat to such results. For example, the General Banking Act, the Bills and Notes Act, the Collateral Act were enacted in the mid-1990s. So banks could not resort to legal instruments to recover their claims. Some debtors maliciously deferred repayments to creditor banks. Also many banks were inclined to the public nature of financing rather than profitability.
The China Collateral Act, one of the most favorite legal instruments of Chinese creditor banks, was established in June 1995 and came into force on October 1, 1995. The Collateral Law has provisions of guarantee, mortgage, pledge, lien and deposit. One of its characteristics is that creditors are allowed to enforce their claims by means of purchase after evaluation, public power sale or auction in consultation with debtors. Of course, creditors are entitled to file suits with the people's court. In any case, the proceeds after redeeming creditors' claims should go to debtors. If there remains deficiency, debtors shall repay the whole.
Though one cannot find the legal term of right of separation, bankruptcy creditors with proper collaterals may recover their claims preferentially to any other general creditors. As a matter of law, the Company Bankruptcy Act provides for that any encumbered assets subject to such security right shall not belong to the bankruptcy estate. But it should be noted that, if the debtor company has not sufficient properties to satisfy unemployment benefits for employees, unpaid wages and social insurance policies, the bankruptcy court would not allow preferential payment to the creditors from the proceeds. It is one of transition phenomena from the socialist country to the capitalist one, undermining the legal stability and transparency.
Therefore, would-be investors in China should bear in mind the followings:
First, the commercial banks has paid a great attention to the credibility of borrowers and put applicant-borrowers into a harsh credit review process.
Second, creditors cannot fully enforce their security rights as provided in pertinent laws owing to the court judges inclined to employee claimants. Under the Collateral Act, the government or non-profit organizations are not allowed to stand as a guarantor.
Third, foreign investors should be prepared for any limitation to new entry or management participation in Chinese companies, levied by the government or the market. One should be careful to invest in the State-held shares under the influence of the previous management. Chinese accounting system is quite different from the global standards. The top-priority must be the employment issue or good relationship with government officials.
Such lessons should be learned in North Korea which has apparently followed the Chinese development model.
The banking system in China, originally under one umbrella of the Central Bank of China, has been ramified into policy financing, commercial banking, securities and insurance businesses. Ever since 1983, state-run companies had to seek other banking sources than the traditional government treasury. Based upon the "separation of government and enterprise" and "no more gratis" principle, the investment to public entities changed its sources from the government budget to bank borrowings. In 1993, the China Supreme Congress resolved the reform policies,. including restoration of financial markets, rationalization of banking organizations, separation of commercial banking from the public sector financing.
Notwithstanding such financial reforms, the government, in particular, the local governments, did not cease to wield their powers in lending process, and inevitably brought in increasing volume of problem loans.
The imperfect banking and finance related laws and regulations contributed somewhat to such results. For example, the General Banking Act, the Bills and Notes Act, the Collateral Act were enacted in the mid-1990s. So banks could not resort to legal instruments to recover their claims. Some debtors maliciously deferred repayments to creditor banks. Also many banks were inclined to the public nature of financing rather than profitability.
The China Collateral Act, one of the most favorite legal instruments of Chinese creditor banks, was established in June 1995 and came into force on October 1, 1995. The Collateral Law has provisions of guarantee, mortgage, pledge, lien and deposit. One of its characteristics is that creditors are allowed to enforce their claims by means of purchase after evaluation, public power sale or auction in consultation with debtors. Of course, creditors are entitled to file suits with the people's court. In any case, the proceeds after redeeming creditors' claims should go to debtors. If there remains deficiency, debtors shall repay the whole.
Though one cannot find the legal term of right of separation, bankruptcy creditors with proper collaterals may recover their claims preferentially to any other general creditors. As a matter of law, the Company Bankruptcy Act provides for that any encumbered assets subject to such security right shall not belong to the bankruptcy estate. But it should be noted that, if the debtor company has not sufficient properties to satisfy unemployment benefits for employees, unpaid wages and social insurance policies, the bankruptcy court would not allow preferential payment to the creditors from the proceeds. It is one of transition phenomena from the socialist country to the capitalist one, undermining the legal stability and transparency.
Therefore, would-be investors in China should bear in mind the followings:
First, the commercial banks has paid a great attention to the credibility of borrowers and put applicant-borrowers into a harsh credit review process.
Second, creditors cannot fully enforce their security rights as provided in pertinent laws owing to the court judges inclined to employee claimants. Under the Collateral Act, the government or non-profit organizations are not allowed to stand as a guarantor.
Third, foreign investors should be prepared for any limitation to new entry or management participation in Chinese companies, levied by the government or the market. One should be careful to invest in the State-held shares under the influence of the previous management. Chinese accounting system is quite different from the global standards. The top-priority must be the employment issue or good relationship with government officials.
Such lessons should be learned in North Korea which has apparently followed the Chinese development model.
목차
I. 머리말
II. 중국 금융 시스템의 변혁
III. 중국에서의 담보부거래
IV. 대중국 투자시에 유의할 점
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UCI(KEPA) : I410-ECN-0101-2009-366-013539073