金融衍生品和其他金某地产新的作用及其对规制的挑战(Levmore芝加哥大学

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1、金融衍生品和其他金融创新的作用及其对规制的挑战商法前沿论坛系列之三十五实录Levmore 芝加哥大学法学院 院长上传时间:2009-1-19内容提要: 2008年10月30日，美国芝加哥大学法学院院长Levmore教授应邀访问中国人民大学法学院。中国人民大学法学院院长王利明教授与Levmore院长进行了亲切的会谈，并带领Levmore院长参观了明德法学楼大厅的法律主题浮雕装饰壁画。随后，Levmore院长应邀做客商法前沿论坛系列之三十五，作了题为“金融衍生品和其他金融创新的作用及其对规制的挑战的精彩演讲。讲座开始前王利明院长发表了热情洋溢的欢迎词，对Levmore院长的到来表示热烈欢迎，并希望

2、两大法学院今后有更多的合作和交流。王利明院长还对美国发生的金融海啸发表了自己的看法，认为美国的金融危机对我国的金融法律制度改革提出了挑战。而正确认识与处理好金融创新与金融监管之间的辩证关系，推动我国金融市场健康发展是亟需解决的法律难题。王院长预祝此次演讲圆满成功，并向Levmore院长赠送了礼物。Levmore教授在演讲中对美国的金融危机对经济形势的负面影响表现出一定的乐观态度。他以美国消费者房地产贷款为例，剖析了美国次贷危机的形成过程，并从虚拟经济和实体经济之间的有机联系出发揭示了美国金融衍生工具的产生机理和积极作用。他认为，金融衍生工具与法律之间关系密切，在交易过程中，很多人希望找到法律的

3、漏洞规避责任，这就要求加强金融法律制度的完善与创新。在提到市场与政府的关系时，Levmore教授认为完美的市场也需要政府监管。但不应当由于近期美国发生的金融危机而否定金融创新活动。在一定意义上，“所有的合同都是赌博”。他认为对最好的金融市场监管手段就是信息披露。Levmore院长演讲结束后，刘俊海教授、徐孟洲教授和董安生教授作了精彩点评，并结合我国目前金融市场中的法律应对之道提出了建设性意见,主张在加强和改善金融监管的同时，继续鼓励金融创新，尤其是保护好金融投资者的合法权益。随后，Levmore院长与在场同学进行了交流互动，Levmore院长的幽默诙谐赢得听众阵阵笑声。讲座在同学们热烈的掌声中

4、结束。本次讲座由中国人民大学商法研究所所长刘俊海教授主持。院长助理石佳友副教授在讲座开始前参加了会见。(陈澄) 主讲人：Levmore 芝加哥大学法学院院长 特邀嘉宾：王利明 中国人民大学法学院院长 全国人大法律委员会委员 中国法学会民法学研究会会长 评议人：徐孟洲 中国人民大学法学院教授 董安生 中国人民大学法学院教授 主持人：刘俊海 中国人民大学法学院教授 中国人民大学商法研究所所长 时间：10月30日晚6：30 刘俊海教授：尊敬的Levmore院长，尊敬的王利明院长，尊敬的徐孟洲教授、董安生教授，各位同学，大家晚上好！我们非常高兴地邀请到芝加哥大学法学院院长Levmore教授给我们做讲座

5、。今天讲座的题目是“金融衍生品和其他金融创新的作用及其对规制的挑战”。levmore教授是美国著名的侵权法、公司法、金融法方面的专家，一直以来就担任芝加哥大学法学院院长，还是美国法学院院长协会的主席。今天我们还邀请到了几位嘉宾，下面为大家介绍一下。首先是中国人民大学法学院院长、全国人大法律委员会委员、中国法学会民法学研究会会长王利明教授，还有中国人民大学法学院著名的教授徐孟洲老师和董安生老师。现今美国的金融风暴波及全球，关于危机的处理，不同的人群发出了不同的声音。现在大家看到格林斯潘在23号接受国会质询的时候说金融机构是能够通过自律保护好本公司的利益，保护好投资者的利益，结果我没想到自律失灵。

6、那么到今天我听到国内两种或三种声音，一种声音说要继续加大监管，一种声音说不监管， 因为已经发生的事情再监管也没有用，未来发生的事情你还不知道发生什么，你如果监管将来会弊大于利，还有一种观点是折中说。那么究竟levmore教授今天晚上的讲座会有什么内容呢，我相信他要回答我们的疑问，那就是创新与监管的关系，还有自律与行政监管的关系，在这方面我个人觉得王利明院长对这个问题也有很深刻的司考，下面有请王利明院长致欢迎辞。 王利明院长：老师们，同学们，大家晚上好，今天我们非常高兴也非常荣幸得邀请到芝加哥大学法学院院长levmore教授到我们法学院来给大家做一个关于金融衍生品法律问题的精彩的报告，首先请允许

7、我代表我们法学院向levmore教授表示衷心的感谢，并对他的到来表示热烈的欢迎。（掌声）刚才刘俊海教授也介绍了levmore教授是美国著名的有关侵权法、金融法方面的专家，一直以来就担任芝加哥大学法学院院长，还是美国法学院院长临时协会的主席，可以看出他在美国有很高的学术地位。芝加哥大学经济学，大家知道有一个芝加哥学派，法学院据我了解在美国是非常著名的。芝加哥大学法学院在财产法领域有几个知名的教授，芝加哥法学院一直是美国前十名的法学院，所以我们今天能够请到levmore教授确实感到非常荣幸。那么关于金融创新和金融监管的问题，今天讨论的衍生工具问题和金融创新，确实是我们当前讨论的热门话题，我非常希望

8、我们法学院的教师和同学能从法律的角度对这个问题做认真的研讨，从美国发生的金融风暴和经济危机来看，确实可以看出金融监管缺失及不到位，离实体经济太远，金融创新和衍生工具可能会产生很大的问题，产生很大的泡沫。但是在中国究竟我们是不是说因为金融危机的发生，就不能再进行金融创新和衍生产品，我觉得这个问题还需要我们深入的研究。我们怎么能够在加强监管的同时使创新不要太远离实体经济的情况下来加强创新，我觉得这个是非常值得我们研究的问题。我个人觉得中国现在在金融创新方面还是完全不够的，甚至可以说是起步阶段，但我们不能盲目的创新，盲目的创新确实是非常危险的，但是完全不提创新可能也有问题，我们如何在监管到位的情况下

9、，在密切结合实体经济的前提下来搞好金融创新，这给我们带来了许多需要我们探讨的问题。今天levmore教授在这方面给我们提供许多有价值的观点和见解，我们非常期待他针对这些问题做出非常有见解的回答，最后再次感谢levmore教授，祝他演讲成功，谢谢大家！（掌声） 刘俊海教授：下面我们以热烈的掌声欢迎levmore教授怀着一颗对美国金融法负责的学术之心给我们做演讲，大家欢迎（掌声），下面由王利明院长代表人民大学法学院向levmore教授赠送礼物，大家欢迎（掌声），这标志着人民大学法学院和芝加哥大学法学院将有来有往，王利明院长因为有紧急教务要马上离开，大家欢送。（掌声）We will get a st

10、art. levmore教授：If I sit here can everyone hear me？ 同学：Yes levmore教授：Sure. If it is the microphone you tell me but so far its ok. Thank you for inviting me its honored to be here. In my country we dont give presents at all after speech because maybe the speech is not good, and then we dont need prese

11、nts. But here ,this is economics I will take my best, So I understand that your English is much better than I think, so I speak in English. I didnt understand much but I know half of them was not true. but on the other hand thank you very much. I will tell a little bit about my topic and how we go a

12、bout this tonight. I know you have a lot of things to do and I am very glad that you are here so I try not to waste time. I will speak for maybe half of the time or one third of the time in thought of a few ideas and I am not being provoked on purpose and some of my ideas will be very unpopular but

13、thats ok. And then I hope you pick up some questions and discussions then maybe I can change my ideas a little bit. I will try to end if not pressing but the world is ok and we are all good And thirdly of my part is this problem is really not a big problem at all. I just warn you about that and I do

14、nt believe in terrible crisis and I think it is not so bad. So I start with a little background I think everybody understand the basic structure. I want to make sure we all understand the same thing so I first say a little bit about general understanding of where the crisis comes from and why it spr

15、eads around the world. And then a different view of where the crisis comes from and then I want to argue what the real cause of the crisis is and then we may talk about what will happen in the future and then ask question about this, ok? All right, thank you . So first I think there is basic fact in

16、 case somebody are not turn out to tell for year. maybe miss all the news and they dont know anything going on so what you have missed in the world for last year. First we have Olympic games, we did know and we are here and then we have an election coming up in US and a middle of whole thing, the st

17、ock market around the world which have been going up very high and then down a little bit and then stable. All of a sudden, they are bad news to us. And the united states want to invest the bank Lehman brothers announce one day and after two days they couldnt pay the worker any more , a big problem.

18、 And the federal government maybe want to give us some money and we could stay along. And the government said well we think about it a little bit, we think about it for days. A very mad day and a very big insurance company called AIG which gain a few million a year The big insurance company AIG have

19、 very complicated business . They said all about the way we also have no money, its not a big deal and its only a few billion dollars, dont worry about that. We probably go to business. Everybody in the whole country will lose confidence in the economy. Because we insure many many things. And so the

20、 government have a meeting and they came out at the weekend, they said well we think Lehman brothers can go away, its ok, they collapsed, but AIG insurance company here we give you many billion of dollars and you have to agree to a certain number of rules and you couldnt say a lot. So lets call back

21、 50% of the policy two companies two big big companies about to go bankrupt and the government says one of you can save and one of you can die. And then since then many many companies realize they are also in trouble the same things that brought down those companies which the minute and then now the

22、 stock market going down down, up a little bit and then down and down. So now the stock market is about 9000 so it was very high then for a long time reaching 12,000 and now 9,000, again I would come back to this later on and say thats not really very low, but it seems very low, and television love

23、this, they say the US lost 30% of the ware overnight because when went from 14% now to 9,000, the televisions mathematics might not be good, they call that 30% and all the housing stock of the US is going down and down. The American is pouring its homeless people from all the streets, its terrible,

24、so it means I borrow money, I borrow money to buy the house and the bank will lend you money and we have a claim on your house, if few can pay the money back we have your house pay back, actually the bank doesnt want to own the house, and its terrible selling the houses, but want to threaten people

25、you had better pay off and if you dont pay back you are a loser now, so I dont know anybody who is lost the house, in our Chicago maybe 500 people have lost their houses more than before, its very very small, but in some part of the country it is much bigger, maybe 5%, in Florida and California. Man

26、y people have mortgages in their house, 50% of the house now the owners own the house. Of another 50%, maybe 5% of them are in danger, so its not a huge number, but this is significant small number, maybe I think the number is 12 million, 100 million own some danger. Ok ,but people say it is a big c

27、risis, it is getting worse, and you know the same things happen in New York, and Japan is in crisis for 25 years already, it has a big down and now it maybe a little up. So the question we want to answer first is how this trouble come down and what rules we will plan and then why the crisis suddenly

28、 now and what can the government do for that ,thats the first thing we need to understand. Ok ,all right. Next is, so this is the general description of how the crisis come from and its all about housing, why? Because we all stay in countries especially the US and it is easy to borrow money. If you

29、go to a bank say I want to borrow money to go to the university of Chicago law school, the bank will say sure we lend you money cause students want, and you know the university is expensive but it is also very very easy to borrow money to go to university. Several reasons, one is the very very very

30、good if you go to a great university, even you go to a bad university, the rate of return is about 15%, people go to university come back from university, they make more money than before he is able to pay back the money. Also there is interesting legal rule that is if not allowed to go to universit

31、y, borrow money finishing university and say I have no money I go bankrupt. You can go bankrupt in US and start all over again for almost anything, but not students alone, students alone survive bankruptcy with that interesting law, many people borrow money and they go bankruptcy, therefore the risk

32、 of students start going down. So good students start to complain the university start to complain thats terrible .Thats one way you can borrow money. The other way most people can borrow money is by buying house, so they go house and the house seller say 100,000 dollars, or maybe from their family

33、or from their job, they have 20,000 dollars, they go to the bank say I need 80,000 or 90,000 dollars to buy the house, why dont you buy the house? The bank says we dont want to own a house, we will lend you money and you take mortgages and pay the money back after 13 % interest rate per year and aft

34、er 13 or 15 years you will own the house completely, so why how often the bank is where is the bank of money come from, well you probably know the bank maybe has the money from the public, the bank has millions of dollars, say the bank has 80,000 dollars, and any people can borrow 80,000 dollars, ho

35、w the bank have the money to pay 10 people to buy the house, but as you know the law has let the bank lent more much much money , the bank has 80,000 dollars but it is unlikely all the people go bankrupt, most people will pay back the money, so we expect the bank to lend us 80,000 dollars, the bank

36、lends the money depending on what country you come from and so on, maybe 8,000,000 dollars, so the bank ran out many many mortgages to depending on the money they have in the bank and this is regulated by law. We can think a minute about what will happen if there is no law, the law allowed the bank

37、to leverage the money they have and lend out much much money back. So the two problems came back, one problem is the bank really care about who they lent the money to, we look at the money carefully, we look at the house, you can do survey, make sure the house is well built, because the bank will th

38、e house if the person doesnt pay the mortgage back, but overtime ,banks want to diversify, they will have the mortgage say not so good to lend money to everybody living in one neighborhood, people can pay the loan back, so bank is selling each other mortgages to all the countries all over the world,

39、 so every bank can diversify if you lend money to buy the house, please take that mortgage and shares with the banks all over the country, so really the bank doesnt care if you are so good or not good, this got more and more and more and so people all over the world are investing millions of dollars

40、 in the securities, the securities are bad and the mortgage nobody knows the mortgages are in packages of a bundle of thousand thousand thousand mortgages, so the market doesnt care the quality of the mortgages and people borrow a lot of money. people dont want to lose houses so they borrow money, B

41、ut now we get two problems. One is in American systems also in Japanese systems the market isnt a real free market because the government has encouraged people to buy the house, two ways, one is the tax in a country to buy a house, if I rent a house I made money to be a philosopher, I get salary I p

42、ay the tax on my salary income tax and also I can rent the apartment, if I buy the house ,I go to the bank, borrow money and I buy an apartment, the government say oh the interest you have owe the bank，you can deduct the taxes and pay that back with pretax single before you have paid taxes.so its qu

43、ietly probably to own a house than to rent a house, and another way to think about is that imagine I buy a house and I rent it to myself, and I own a house and I live in it, you dont pay yourself and rent income. Meanwhile the government kept the interest rate very low, by the central bank sending m

44、oney very low, it doesnt by printing more money, so interest rate having been very very low, so what we think about is politically we have in the US is that the government has said to the people that we want you to own a house, we want you to earn a bigger house, you should have a bigger house, we w

45、ill do that, we low low the interest, what happened to the house, to buy a house? if the house goes up to 100,000 dollars and the price goes up to 200,000 dollars, everybody feels rich, oh Im so smart and I buy a house, now its double in values because I put a beautiful kitchen and a simple backyard

46、, what people do is they ran back to the bank and say you lend me 80,000 dollars to buy a house and now I have a 200,000 dollar house because low interest allow many person spend more and more money on houses, the bank say well we will lend you 160,000 dollars, great. Now what I might do and what yo

47、u might do we will go to the bank, and see the value 200,000 dollars, and the first we do is that we will do more mortgage but that is what more people do, what young people do and old people as well, they say oh, 100,000 ,I think a simple backyard and I will have a bigger house, I will go buy this

48、is great I will get rich, and they buy a second house and a third house. And so you have more and more housing stock for about the same population and the stock market has boomed much much faster than the population, the average house in 1950 in US was one third the size of the average house now, so

49、 the country got richer people got more bigger houses, but they dont need a house as three times as big and every movie you see about in the US show bigger houses and it is true, people have their houses because the government have set up houses all these years with the low interest rate and the tax

50、. This is the first problem and that is the condemnable of the crisis, is the many many loan ,the loan is all over the world, the bank is counting on the house price up up up up up and up, every time they go up, people borrow more money, what about houses go down? Well in Japan for many years, 60 ye

51、ars in Tokyo, housing went up and down, I told a story in another room this afternoon, I was in Tokyo in a meeting at the bank of Japan, they are describing the banking system and houses got up for 62 years, and I said, what will happen if the house prices go down, and I know only a little Japanese,

52、 the minister turned to the person next him and they said in Japanese, this is a stupid person, he didnt think house prices could go down, this will never happen, well, this guy maybe 60 years old, everyday he wakes up, sun goes up, everyday was life, everyday you make housing go up and up, he just

53、believes housing prices in Tokyo around, but we all have in Japan, housing prices fell in Japan for ten years, the housing prices falling falling falling, how prices go up for 60 years, why? Because everybody knows that the prices go up, imagine you know its a dollar today, a dollar ten tomorrow and

54、 a dollar 20 next day or 30 next day, and if you knew it was going up, and it went up, and you believe and you have the bank in Japan, and you believe the price is 3 dollars today, tomorrow 3 dollars ten cents, you cant waste time, you run out and buy and what you buy today will makes money tomorrow

55、, actually its serious of keeping it up and keeping it down, the prices should reflected and thats probable turn to and you should be aware of that, probably this is thought as the core of the crisis, too many people thought the housing would go up, they borrowed money they borrowed money, and the b

56、ank lend more and more money, the security around the world, people started creating financial instruments they from value of housing so the billions and billions dollars in the stock market and derivative market all based on the value of housing, everybody believe in their mind that housing would g

57、o up, housing go down just a little bit, all of a sudden all of the banks lending it all, the bank is in trouble everybody else is in trouble and all over the world the stock trade. This is the thought of conventional view of the current situation. Next I think one thing made this crisis worse is th

58、e main cause of the crisis is that we all live in a world that people in the US think housing is go up and people in Japan think housing is only getting up, they could say people are wrong, they are stupid as we know people have in history, itok, we will go bankrupt, a little bit money and its ok. N

59、ow we have international capital flow, capital flow all over the world, you have countries like china like the US like Indonesia and they are investing billions and billions of dollars all over the world, and they want to invest money to get the highest rate of return, so if in Germany they can get

60、a 8% return, in france they can get 8% and the US they can get 10% percent, everybody will send money to the US because everybody is under the pressure to get the highest rate of return, this gave every country systems and every bank every company incentives to try to earn a higher higher rate of re

61、turn, the higher rate of return is sometimes increasing the risk, but you have to increase the risk in a way, its hard for people to evaluate the risk. Its very hard to evaluate the risk that all the housing in the united states will go down to compare how is in Germany and how is in Japan, so its v

62、ery uncertain risk but you should inspect the international capital to all try to flow in the high industry and I think this put more pressure on the cycle and as people overestimated the house value, more capital flow that created more money and people bulit bigger houses, and it goes up and up and

63、 up, tremendous pressures try to earn high risk return its a little bit of the market failure and I come from the city Chicago and we all say market is perfect, and everything in the market is perfect but I think the market was uninformed, market is a little bit imperfect and how much the risk was a

64、ssociated, again this is the subject, lets come back to the part. I think we understand the basic picture, you might also say the solution is also obvious, the government could commonly say lets give the bank a trillion dollars, we give the bank a lot of money and they lend it out again, so if the government give the bank more money, the government regulated the bank much more, we try to do what they want, it didnt work out , we have financial crisis, now we will give you more money or bear you out , but we got watching carefully and each time w