Abstract: The economic case against a direct impact on the operational effectiveness of commercial banks, and may affect the normal business operations of commercial banks, commercial banks and even the impact of normal working order, so losing the economic case for the analysis, seeking to reduce or avoid losing cases countermeasures for preventing and resolving commercial banks operating in the legal risk, improve operational efficiency commercial banks undoubtedly of great practical significance. I. stage of China's commercial banks lost cause analysis of economic cases
Cause commercial banks lost causes are complex and can be divided into two types of internal factors and external factors.
(A losing economic cases occurring external causes
1, the legislation flawed.
In recent years, China's financial legal construction has made great achievements, but also there are many problems and shortcomings of these defects and deficiencies to commercial banks economy had a negative impact litigation, outstanding performance in three areas:
(A legislative gaps in vulnerability. Although much of the current legislation to increase the number, but there are still a lot of careless and gaps, many problems can not follow, to commercial banks economy had a negative impact litigation, such as present our current legislation on crimes and personal crimes unclear demarcation, resulting in judicial practice appeared to unlimited individual criminal qualitative expansion of the phenomenon, many of the duties without the slightest relationship with the bank staff's personal crimes identified by the judicial of job-related crimes, thus making commercial banks in the subsequent proceedings against the victim and take responsibility, and ultimately passed on to the victim's losses incurred by the banks.
(2 Legislation conflicts between our current financial legislation there are some differences, not fully harmonized, or even conflicting, especially with the People's Bank of China's Supreme People's Court judicial interpretation particularly apparent conflict between while the People's Bank of China the financial regulatory authorities, financial regulations they develop naturally on commercial banks to conduct business with the binding of course, in this case, there will be play by the commercial banks operating under the premise still have to suffer against irregularities, such as according to Chinese The People's Bank Payment and Settlement << >>, banking bills business only in the holder's identity in the form of examination can be carried out in good faith, according to Supreme People's Court on the trial of bills enacted << Issues Disputes requirement >>, in the process of bills for payment, the bank towards the customer review identity documents negative absolute responsibility, otherwise, the bank liable to lose and the author that because of the current low-tech ID cards, easy to fake and difficult recognition, so in the current technical conditions required banks to customer identification assume absolute responsibility of the review is unrealistic, while the Supreme Court did not consider the provisions of the holder's own fault (especially bearer obligations entirely safekeeping notes fault for the loss of influence, in violation of the law of fairness, and justice, but also to criminals to commit fraud, the damage to the banks pass on the customer provides an opportunity lost.
(3 Legislative unreasonable. Because it involves banking laws, regulations, administrative rules, judicial interpretation, documents, notifications, etc. by various national agencies to develop, and different state organs in the development of the above-mentioned document binding values are different, even in the presence narrow sectoral protectionist tendencies, and most binding document making process lacks transparency, openness, although no bank involvement or participation in the bank, but the bank's cries ignored, so the above constraint files inevitably consider the interests of the banks little or no be considered, leading commercial banks in the application of these constraint files lawsuit against, such as certificates of deposit under Supreme << hear disputes concerning certain provisions >>, certificates of deposit holders hardly bear any burden of proof and the bank should not only bear the burden of proof regarding the authenticity of certificates of deposit, deposit relationships have to bear about the authenticity of the burden of proof, but in deposit disputes practice, the banks will be difficult to find outside of the internal accounting records other evidence, and the bank internal accounting records and evidence of effectiveness is severely restricted, which is also all commercial banks deposit disputes, the bank lost almost all of the important reasons.
2, judicial corruption. Reality judicial environment is not standardized, local protectionism, favoritism, administrative intervention in the judiciary is widespread, judges greater discretion, coupled with the other party to the proceedings Most banks will Costly, no matter the cost, corrupting judges even gave bribe judges, and banks used by a variety of public relations costs are often constrained even without the normal handling fee, in which case this should not result in some cases bank bank lost lost.
3, the court sided emphasis on the protection of the weak error-prone. Weak on civil protection means according to the specific social relations in which people, for individuals living in weak position or tilted through special laws of nature protection. Civil protection is built on weak In accurately determine the status of the weak, the weak in a legitimate act of legitimate motives, the weak to effectively discharge her business on the basis of on the above reasons, groups and individuals in the course of the proceedings, the individual is not of course the weak. Yet In the financial case litigation, many judges in adjudicating cases, particularly in cases involving individual depositors, often there is a big mind-set, one-sided emphasis on protecting the interests of the weak, ignore the legitimate interests of banks, ignoring the other party's fault, contrary the case of the referee should have impartial, neutral position, resulting in some of the banks should not be lost of the case is lost.
4, the referee and the referee based on a broad process of strict rules tendencies. Judicial practice, the court during the trial will not only laws and regulations, such as a referee in accordance with judicial interpretations, but also according to People's Bank of China, the State Bureau of Land Management, Ministry of Finance, the State Economic and Trade Commission, and many other central state administration bodies and even local files, and even the leadership of the speech as a referee and mechanically based on the strict application of the said documents, speeches transparency is not high, the scope of many documents issued limited to the organ system, the banks often can not promptly informed of its contents, let alone conduct business in accordance with the spirit of the document. broad basis of the referee and the referee in the process of making strict rules tendencies should not be part of commercial banks losing the case is lost.
5, the judge rules on banking, business operations are not familiar with. In recent years, the rapid development of China's banking, commercial banking operations increasingly to professional development, while China's People's Bank of commercial banking rules require rapid changes and the rules are quite different before and after, or even before and after the opposite. Vast majority of judges not received specialized financial professional education, but the lack of financial work experience, especially in the banking business is not familiar with the content and the development of financial regulatory changes are not familiar with this part of the financial result in the case during the trial, the case of qualitative allowed , the entity referee mistakes, some commercial banks should not have lost the case against the judgment in the bank's new business involving commercial litigation, because judges do not understand the banking business and related international practices to commercial banks referee economic case is particularly negative impact prominent as in the emerging electronic banking services, private banking customer identification code is the only way to view private passwords, uniqueness, secrecy, in relation to electronic banking disputes, should I apply principles of conduct . I called principles of conduct, as long as the objective is used in the transaction with a private password, without exemptions, it is considered trader I engaged in the use of personal transactions, I this transaction should bear the corresponding responsibility. Yet in the judicial In practice, many judges do not understand the legal rules, but mechanically requires commercial banks to bear the burden of proof customer password improper care, and banks in this case did not prove, so the court will sentence Bank lost.
6, criminals combat ineffective due to combat ineffective against criminals, criminals often use the community bank settlement system on certain loopholes and defects in the current judicial system, the use of bills of exchange and other tools for fraud settlement, after committing the crime criminals hiding, banks are often passive victims to court and lost.
(Two cases occurred within economic reason for losing
1, illegal off-balance sheet operations and running the company in the aftermath, and some commercial banks in the past violations, off-balance operating more off-balance sheet assets of poor quality, especially the individual operating rail line running the company is very serious breach of these offenders rail operations and account occurred after more alleged cases, and these alleged cases of the original claims and liabilities difficult to define, but most of the cases the case is complex, involving large amounts of bank more obvious fault in litigation bank more passive, eventually leading to the case is lost.
2, lax management, internal control mechanism is not perfect or not seriously implemented. Profits for the completion of some commercial banks, benefits and other indicators of performance evaluation, one-sided emphasis on business development, light internal management, internal management and relaxation, internal control mechanism is not perfect or not seriously implemented, there follow established rules, illegal operation. The above phenomenon was particularly prominent in the primary line, such as an important sector, important positions changing of the guard post adjustment system is not implemented on the important blank vouchers, stamps poor management by people with ulterior motives advantage of the loophole. Relaxation due to internal management, internal control mechanisms unsound or not implemented unsuccessful cases occurred mainly external security deposit disputes and cases.
In addition, because management is lax, some handling personnel legal awareness, sense of duty, resulting in cases of lost mainly as follows: (a delinquent loans do not take the initiative, resulting in the loss of the statute of limitations, missed and lost the guarantee period, especially in due institutional changes and restart the business transfer, the old and new loan officer alternate address change process and corporate loans lose such circumstances the statute of limitations, guarantee more. (2 Since imperfect credit records management, resulting in the loss of some of the lack of credit information, When there is a dispute, the bank because the relevant facts are not leaving the burden of proof can not be established, the claims are not supported by the court, leading to lost.
3, for legal affairs seriously enough, severely restricted the legal work of legal risk prevention functions of the play.
Most commercial banks now have some of the full-time staff of legal affairs, but the legal staff in their daily work most of the time and energy on litigation payable for litigation matters has been exhausted, legal affairs can not be done prior to intervene actively prevent and defuse the operations of legal risks and commercial banking establishments (such as points, branch and so is the business development of the first line, but these grass-roots units in the legal department is not independent, the legal affairs department of the majority anchored in other business sectors, personnel with a serious shortage of legal protection of the independence of the lack of organization, seriously affecting the legal work functions play legal risk prevention, while legal work is important in many elementary row without being seriously embarrassing situation, coupled with low pay, heavy tasks , fewer development opportunities and other reasons, the existing limited legal staff and the continual loss of legal affairs affecting the role into full play, restricted work effectively administering OK.
4, the staff lack the initiative to learn the law, legal knowledge updating laws can not keep up the pace of development of contemporary Chinese legal system has developed rapidly, the rapid renewal of the law, the law on financial services regulatory requirements become more stringent, but many employees, especially junior staff lack of legal learning initiative, one-sided emphasis on the bank's internal regulations, and document the learning and insufficient attention to learning the law, legal knowledge updating laws can not keep up the pace of development, and these officers also are the first line of business operations, so they in business operations accustomed to personal subjective experience of a legal, instead of the traditional operating laws to replace the subjective laws to replace the hearsay law, with his line operations instead of laws, regulations, and laws inconsistent with the bank's internal conflict even in the case, still mechanically adhere to act in accordance with the bank's internal regulations, which led to the subsequent proceedings in bank lost.
5, pre-litigation argument is not enough. Detailed pretrial litigation argument is an important guarantee for the quality, but some cases. Part of the bank is not strong sense of economic action, often in the proceedings until the expiry rush effective prosecution, but has not been pre-litigation argument seriously, because litigation objects, litigation subject of litigation strategy or misconduct on the losing cause.
6, the person responsible for the bank's internal punishment ineffective. Persons responsible for the illegal crime punishable by law, on the deterrence of potential criminals to curb illegal and criminal acts to reduce the losing case has great positive effect. However, due out not wash your dirty linen in public, broken teeth to swallow the psychological impact or by nepotism and other reasons, many of the reported cases of the judiciary should not report, or to administrative penalties, administrative sanctions instead of legal sanctions, thus making many of the legal sanctions should be The criminals do not sanctioned and thus objectively connived criminals.
7, the employer improperly, "capable" to sell the line. Employer is caused by improper economic Criminal Cases of the important reasons in personnel issues, some banks in the past one-sided emphasis on pioneering "capable", while ignoring the principle of ability and political integrity, resulting in employer misconduct, the employer and the lack of supervision of the process, identify problems and then not treated, to the persons responsible opportunity, resulting in greater losses.Links to free download http://eng.hi138.com
Second, the commercial banks to prevent or reduce the economic case against the Countermeasures
(A line according to law, strengthen the management, maintenance, rules and regulations of the seriousness and authority, rely on the system's rigidity to protect banks compliant operation.
1, according to the law compliance management, and establish full awareness of the law. Commercial bank staff, especially leading cadres at all levels to firmly establish the "illegal business is the greatest financial risk" concept, so that the law must be strictly enforced, and strive to financial laws and regulations are implemented. Should strictly adhere to the division of labor responsibility, mutual assistance, mutual supervision, operation and management of mutual restraint law principles, and resolutely put an end to the illegal business activities as well as illegal, to ensure compliant operation.
2, we must resolutely implement regulations to the rigidity of the system to protect the bank's legal compliance activities. Reality there are chapters that do not follow, illegal operation behavior despite repeated prohibitions, causing huge economic losses of the bank, its crux lies in the past on the weak implementation of rules and regulations for handling the problem of violation of discipline is lax, resulting in various systems lose their seriousness, authority, would not achieve the deterrent effect, regulate employee behavior to reach the purpose of the future must change our concepts, firmly press system work, so there are rules to follow, that regulations reserved strictly enforce rules and regulations necessary to be accustomed to restrict the use of a rigid system to curb violations, the responsible person must promptly give the necessary punishment, and thus effectively achieve compliance with laws compliance management, to prevent the occurrence of unsuccessful cases.
3, to strengthen supervision of the operation of the business specification, assessment, strictly regulate the operational behavior of commercial banks should strengthen the supervision of daily operations and assessment procedures, creating an environment and atmosphere for compliance law, and promote the business standard operation. To education of the staff, especially front-line operational staff from banks maintain high security awareness of the importance standardize business operations, identify problems serious legal formalities meaning firmly establish risk prevention awareness, eliminating the kind of problem that operational procedures are little things, insignificant confused understanding to stop operating personnel in dealing with business process does not act in strict accordance, only experience, speculation, assume to deal with the business, or even out to take care of relations, stressing the need for human error approach to streamline business procedures, thus effectively frustrate people with ulterior motives to banking operations procedural flaws as an excuse to attempt to pass on the loss to avoid this problem, caused disputes and lost.
(Two properly handle the relationship between several business development.
Development is the last word, but the banks in business development to properly handle the business development, business competition and legal risk prevention relations, business innovation and risk prevention law relationships, leadership approval and legal review of the relationship, respect for leadership, leadership and obedience respect for the law relationships, not one-sided emphasis on business development, business competition, business innovation while ignoring legal risk prevention, can not one-sided, unprincipled leadership without respect for the law emphasizes respect, planted potential risks from the current practice, the above relationship in particular should attach great importance to properly handle business innovation and risk prevention law relationship.
Banking innovation is conducive to better serve our customers and enhance the competitiveness of banks, the increase in bank profitability, but the bank's business innovation often face legal lag, innovative business operations after banks and customers often do not have the legal rights and obligations clear norms, business innovation in the law so often there is a certain risk. To guard against legal risks in business innovation, the launch of the new business to seriously improve the business prospectus and other contractual legal documents, legal documents via the contractual decentralized business innovation The legal risk, with particular emphasis on business innovation in technical indicators legal requirements and contractual documents for consistency. Meanwhile, according to business innovation practice lessons, business innovation to avoid undue emphasis on business innovation in technology maturity, stability and ignoring legal risks, ignoring contractual drafting and review of legal documents tendencies.
(Three enhanced legal affairs.
All commercial banks should be fully aware of the good job leading legal affairs to improve the bank compliant operation, prevent and mitigate legal risks in banking operations, safeguard the legitimate rights and interests of banks practical significance, based on long-term, actively strengthen the bank's own institution-building and Legal Affairs legal affairs team building, to carry out the work of Legal Affairs to provide the necessary human and material support, and enhance the independence of legal work, strengthen the legal affairs department at the bank's business in the important role of effective protection of the legal department of the major banks involved in the decision making , business development and other activities, so that the legal department really play the role of the firewall while legal affairs to effectively change their ideas and will work to resolve after turning the focus in advance prevention, and actively involved in the bank's business round the whole process, and effectively prevent and resolve operational risks, reduce litigation caused by various factors.
(Four to strengthen case management sued.
1, line leadership at all levels should attach great importance to the respondent cases present a few lines leading commercial bank that the bank's deposit and loan business to increase the bank's income, the bank's profits contribute while respondent cases more with historical issues, Banks do not directly generate profits, and thus only the attention deposit and loan business, paying no attention to alleged cases or insufficient attention. urgent need to correct the misconceptions. deposits and loans in the banking income, the contribution of the banks is a positive contribution to profits, while losing cases to reduce the banks to reduce expenditure on bank profits is also a contribution, but is a negative contribution to the line so the leadership at all levels should attach great importance to the respondent cases, as much as possible to give the respondent in support of litigation cases, although may reduce the lost cases.
2, to strengthen pre-litigation argument, the establishment of pre-litigation settlement system. V. For the case of proceedings before the argument has an important role, not only can fully brainstorming, but also the most widely known facts, clarify the respondent thinking, lay the foundation for future litigation and therefore , to strengthen the pre-litigation argument After pre-litigation after the demonstration of banking operations to be defective, or even clearly illegal, or certainly not required by law banks exemption, would certainly lose the case, the bank should take the initiative for a settlement with the other party, for conducted pre-litigation settlement and to make payments to reduce unsuccessful cases, to avoid unnecessary waste of manpower, material and financial resources, while reducing the pay legal fees, security fees, application execution fee, overdue interest, penalty interest, deferred performance even part of the debt principal.
3, strengthen management and control systems outside counsel. Respondent's case on whether to hire a lawyer, a lawyer demands, attorneys' fees and payment amount and payment conditions for the work of outside counsel tracking supervision and monitoring, banking law departments should strict unified management, strengthen surveillance, can not relax because of outside counsel and management of even the laissez-faire, the consequences affect the handling of the case the respondent.
4, with the court proceedings to strengthen communication. Based on the facts and law as the yardstick is a fundamental principle of law. "Fact-based", although the truth is an objective reality, but facts are subjective judges: "The basis of law," the law is flexible and therefore civil judges discretion is not the people's subjective will an objective existence. discretion in order to avoid litigation of commercial banks, the negative impact in the proceedings to strengthen communication with the court, especially the law is vague, greater elasticity case. According to judicial practice, in the communication process , the bank should pay attention to timely and accurate manner to provide the court with the relevant financial regulations, documents and other materials, and clearly states its scope and development and change, in order to facilitate the accurate characterization court case, apply the law correctly, to avoid or reduce the losing case. Banks leaders should face up to the Court the importance of communication and contact, and expenses to give the necessary support, gives the necessary public relations.
5, the practical implementation of the system losing cases analyzed and summarized. To summarize unsuccessful cases, in failure to accumulate experience from the case of the respondent to prepare, evidence gathering, litigation, negotiations and other aspects of a comprehensive executive summary. Problems for losing cases analysis, for unclear facts, judgments against cases of misconduct filed an appeal or grievance must be resolutely and effectively defuse risks losing the right judgment of the court case on the matter after the bank can not pay, but also to be carefully analyzed, lessons learned, and to place on primary line of business sector feedback, lessons learned, to avoid repeating similar mistakes.
(Five established case processing respondent incentives.
1, the establishment of losing cases commuted reward system. Banks should establish the actual situation according to their own effective verdict against cases commuted reward system, after judgment on the case is lost, before the payment, through the efforts of the court commuted banks exempted from the payment obligation shall be awarded.
2, the establishment of losing cases decreased performance reward system has the benefit of the court force the contents of court case against the bank would like to apply for payment of debt principal executor unconditional normal interest, penalty interest, default interest, court costs, property preservation fee , the application execution fee, deferred performance, etc. But in the actual implementation process, through the banks to do the work to get the money is part of relief. But lost the case because there is no reward system to perform reduction, many elementary row facing the courts to enforce only made advances to the higher line report, a report of it, without doing the creditor, enforce the court's work. Therefore recommended that each line according to their own unsuccessful cases to establish the actual situation of reduced performance reward system, to reduce the amount of lost pay contributions to individual cases shall be reduced to give a certain percentage of the amount paid incentives.
(Six to strengthen legal education and improve all employees, especially managers at all levels of legal knowledge and legal standards.
Legal education and legal training should advance with the times, to be untiring, and effectively improve staff awareness of the law and legal concepts, so that all employees are able to do knowing the law, according to the law, so that bank employees are familiar with the work-related laws, regulations, and guide employees to establish the concept of business law, business management adept use of legal means to maintain the legitimate rights and interests me OK To enhance staff team building and raising their awareness of risk prevention and legal level, to help employees realize the business legal risk, pay attention to preventive measures, China has joined WTO. China to join the WTO in order to fulfill the commitments made by China in recent years to develop, modify, repeal a lot of laws and regulations, in this case, the bank but also to increase the legal work efforts to effectively prevent the business operations of the legal risks.Links to free download http://eng.hi138.com