Banking Law (Germany)
In German law, banking law is a cross-sectional matter of various laws and similar legal norms that deal with the legal relationships in the banking sector , banking transactions and banking supervisory law. There are national and international banking regulations (European and supranational banking law).
With the emergence of the stock exchanges in April 1625, a council edict issued by the city of Frankfurt gave rise to the first capital market law, when it obliged the exchange brokers and the most respected merchants to set an average rate for the pay week following the fair. In June 1666 a regulation for exchange and merchant transactions followed. The bill of exchange regulations was the first banking law standard in Germany; the first German change order came from May 1849. It was preceded by regional change orders such as the Leipzig change order of November 1681. On December 12, 1838, the first law regulating a certain banking group ( savings banks ) came into being in Prussia as the Savings Banks Act (“Regulations concerning the establishment of the savings banks”). This Prussian savings bank law of 1838 was still in force in most of the Prussian successor states after 1945, for example in Hesse (until December 1954) and North Rhine-Westphalia (until January 1958).
The first German stock exchange law came into force in June 1896. The Civil Code of January 1900 contained with "born" loan collateral as guarantee , mortgage and lien important contractual provisions for the lending business of the banks; it also regulates fragmentary - now more detailed - payment transactions and the legal relationships common in banking, such as orders , agency agreements or loans . The first German Banking Act (KWG) was passed in January 1934 as a result of the banking crisis in 1931 ; a complete revision came into force in January 1962. It is intended to ensure the general order in the credit system, to maintain the functionality of the credit apparatus even in times of crisis and to protect credit institutions' creditors from losses. The cited judgment of the BVerfG enabled the establishment of the Federal Banking Supervisory Office in January 1962, which primarily monitors compliance with the KWG and other supervisory regulations ( Principle I , Principle Ia , Principle II , etc.). Although banking supervision measures are based on administrative law, they have an effect under banking law. The coming into force of the Solvency Regulation (SolvV) in January 2007, which, in addition to the implementation of supranational supervisory regulations ( Basel II ), also standardized national characteristics of the German credit system, is considered a milestone in banking law . It was replaced in January 2014 by the Capital Adequacy Ordinance (CRR) applicable in all EU member states , which adopted the basic regulations of the SolvV, but took into account the experience from the financial crisis from 2007 onwards based on Basel III in a much more detailed manner .
The Institute for Banking and Banking Law at the University of Cologne was founded on February 23, 1957, making it the oldest in Germany; The first head of the banking law department was Hans Carl Nipperdey , well-known successors were Walter Erman (1963–1969), Klemens Pleyer (1969–1989), Norbert Horn (1989–2002) and since then Klaus Peter Berger . The areas of banking law have constantly expanded and now include securities and capital market law , general terms and conditions law and insider law . Periodicals related to banking law are the WM Part IV for commercial and banking law (since September 3, 1949) or the ZBB (September 1989).
Banking law presents itself as a cross-sectional matter made up of certain regulations of commercial law , civil law and a number of special legal provisions with a business-administrative background, including the Banking Act. Banking law is understood as a separate subject area, provided that it provides the legal norms with which the affairs of banking and capital markets must be dealt with. The extent to which the corporate law organization of the credit institutions in their respective legal forms is also included in banking law is a matter of opinion.
In the literature it is pointed out that the already open concept of banking law is subject to change. According to this, aspects of financial services law are now also covered by banking law that are actually to be assigned to insurance law , such as matters relating to private old-age provision . The amalgamation of banking and insurance supervision in the Federal Financial Supervisory Authority (BaFin) is seen as an indication of this .
- Peter Derleder / Kai-Oliver Knops / Heinz-Georg Bamberger (eds.), Handbook on German and European Banking Law , 2008, p. 19
- Thomas Brzoska, The public-law savings banks between the state and municipalities , 1976, p. 86, FN 42
- BVerfG, judgment of July 24, 1962, Az .: 2 BvF 4/61 et al
- Hans-Peter Schwintowski: Banking law . 3. Edition. Carl Heymanns Verlag, Cologne 2011, ISBN 978-3-452-27150-1 .