Commercial Law Research Association of Jilin Province Law Society (President)
Chanchun', China
Chanchun', China
Tula, Russian Federation
“Penetration” supervision is an important topic concerned in the academic field of China’s financial law recently. On October 13, 2016, the General Office of the State Council officially put forward the concept of “penetrating” supervision, stating that “it is necessary to base on practice and research to solve the financial problems which exposed in the finance field”. Although “penetrating” regulation is a specific concept proposed for the special rectification of Internet financial risks, it has quickly gained the support of many scholars as soon as it is proposed, and some scholars even recommend it to be extended to the entire financial market. This paper focuses on the practice of China’s financial market, defines the connotation of “penetrating” supervision, sorts out the theoretical basis of “penetrating” supervision, types the Chinese-style “transparent” supervision. The realization path of supervision is to optimize the allocation of financial regulatory power and promote the healthy development of the market.
China, financial market, penetration regulation, financial regulation.
1. Conceptual Analysis of Penetrating Supervision Concept
“Penetration” supervision consists of two core terms: “penetration” and “supervision”. In the securities law, the meaning of supervision is relatively clear, usually refers to the administrative supervision and management implemented by the securities regulatory authorities, and sometimes includes self-regulation. But The Look-Through is a descriptive concept, and the meaning is not clear. In Europe legal studies, “Look-Through” is sometimes used together with “Approach” or “Provision”, but it has not been seen to be used together with “Supervision”. Some scholars thought that the theoretical of “penetrating” supervision originally comes from functional supervision and behavior regulation. In fact, “penetrating” supervision is highly correlated with functional supervision and behavioral regulation, but there are significant differences in nature and function. The core function of “penetration” is “fact discovery”, rather than imposing new regulation based on the facts found. In this section, the theoretical basis of “penetrating” regulation is attributed to functional supervision and behavior regulation, which is easy to deviate from the nature of “penetrating” supervision, and thus the scope of “transparent” regulation is inevitably biased. On the one hand, “transparent” regulation focuses on “factfinding” itself, and how to implement supervision and implementation. Regulatory supervision is not the focus of “penetrating” supervision. Based on introducing “penetrating” supervision, it can continue the original industry supervision and institutional supervision, and can also adopt functional supervision or behavior supervision. The theoretical basis of “penetrating” regulation is attributed to functional supervision and behavioral supervision, which cannot explain the legitimacy of “penetrating” supervision under the industry supervision system. Of course, once the financial market introduces “penetrating” supervision. In particular, when “penetration” is directed to financial products, it can indeed lay a good foundation for functional supervision. On the other hand, functional supervision and behavior regulation mainly focus on financial institutions and their finance. Involved in goods or business, it rarely involves market participants outside financial institutions. However, in terms of “penetrating” supervision, it includes product penetration, as well as subject penetration and nesting level penetration. Principal penetration may involve financial institutions, but mainly involves the penetration of securities issuers, controlling shareholders and related investors; in terms of product penetration, the so-called “products” can cover various types of market entities sold outside financial institutions. Financial products, not limited to financial products sold by financial institutions.
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