In the dissertation, for the first time in Ukrainian science of law, a comprehensive study of modern approaches to the legal regulation of systemically important banks was conducted. During the review of doctrinal sources, which reflect the state of scientific development of modern approaches to regulating the activities of systemically important banks, it was established that the available research is of a fragmentary nature, instead, there are no comprehensive studies of the specified topic. The relevance of the dissertation research is determined by the lack of a unified approach in the science of Ukrainian law for understanding of conceptual and categorical framework in the science of foreign law, namely, to the use of the English-language terms “Too Big to Fail”, “bailin” and “bail-out”. Despite the use of the expressions “Too Big to Fail”, “bail-in” and “bail-out” in foreign countries legal doctrines, these terms are unfairly ignored in the Ukrainian legal space. An important point of the research was the terminological analysis of the categories “Too Big to Fail”, “bail-out” and “bail-in”, and the subsequent search and definition of Ukrainian analogues, thanks to which the system of conceptual and categorical framework of the dissertation research was formulated. The work offers the wording of terms: “занадто великий для краху” (English: Too Big to Fail); “бейл-аут” (English: bail-out) and “бейл-ін” (English: bail-in). In the dissertation research the essential characteristic has been given to understand: “занадто системний для краху” (English: too systemic to fail), “занадто пов’язаний для краху” / “занадто взаємопов’язаний для краху” (English: too connected to fail / too interconnected to fail), “занадто багато для краху” (English: too many to fail), “занадто значущий для краху” (English: too important to fail), their common and distinctive features are established, and their mutual relationship is analyzed. Definition of the term “Too Big to Fail” company is proposed. The abbreviation "ЗВДК" (English: TBTF) for “Too Big to Fail” is proposed for use in Ukrainian legal science. For the first time, the study determined the relationship between the concepts: “Systemically Important Bank” (hereinafter – SIB) and “Too Big to Fail Company” (hereinafter – TBTF company). In addition, it was established that only a bank can be systemically important, while Too Big to Fail can be attributed to a legal entity as well. It was concluded that any systemically important bank is too big to fail, while not every TBTF company is a SIB. A conceptual model is proposed and the hierarchical dependence of the conceptual and categorical framework from broader to narrower is determined: “TBTF company” –
“TBTF bank” – “systemically important bank”. A retrospective analysis of the features of state intervention in the activities of the
TBTF company during their crisis has been completed and the amount of financial support and the readiness of the governments of the world to intervene in the activities of such companies were analyzed. In particular, the role of the state in the regulation of the
activities of the Medici Bank, the East India Company, Enron, and Lehman Brothers was considered. The dissertation offers its own definition of bailout and moral hazard in the context of the rescue of TBTF companies. A terminological analysis was carried out and it was established that the debtor’s rehabilitation procedure is closest to the term “bail-out”, while it would be wrong to equate the specified terms, since the rehabilitation procedure in Ukrainian legislation has clearly defined requirements regarding the condition and order of its implementation. The work provides a comparative legal analysis of the derived expressions: “too systemic to fail”, “too connected to fail” / “too interconnected to fail”, “too much to fail”, “too significant to fail”, as well as pejorative lexemes: “too big to fail and too big to save”, “too big to jail”, “too big to fail, too blind to see”, “too big to fail and too risky to exist”, “too big to ignore” and their interrelations are established. It was established that the derived expressions reveal the essence of the TBTF theory and pejorative lexemes reflect its negative aspects. In the course of the work, a comparative legal analysis of the bankruptcy of the
energy company Enron and the Lehman Brothers bank was conducted for the first time, the result of which was the identification of twelve common features that precede the scale of the negative consequences of the company’s collapse and cause the so-called
Lehman Moment. In the study, the ineffectiveness of the application of the bail-out to TBTF companies was established. It has been established that bail-in is a modern approach to solving the problem of the TBTF. Сommon and distinctive features in the requirements of TLAC and MREL were established.
