金融消費者保護之適當性原則研究
發(fā)布時間：2019-04-13 11:05
【摘要】：自2008年全球金融危機以來,如何加強監(jiān)管,抑制金融市場過度自由化,解決金融市場系統(tǒng)性風險從而保護投資者權益成為世界各國共同關注的話題。隨著金融市場國際化進程加速,金融創(chuàng)新的層出不窮,混業(yè)經(jīng)營愈加明顯,各金融機構紛紛推出各類金融產品,在金融產品交易的過程中,普通公眾由于信息不對稱等原因往往處于弱勢導致其財產權益屢遭侵害。近年來,“金融消費者”作為一個統(tǒng)合概念被廣泛提起,橫跨了銀行、證券、期貨、保險等各領域,從消費者保護的角度對進行金融產品交易的普通公眾進行統(tǒng)合保護。 適當性原則從證券領域發(fā)展而起,作為一項行業(yè)自律規(guī)范逐漸過渡到法律規(guī)定,通過課加于金融機構一定義務,在制度上體現(xiàn)將適當?shù)慕鹑诋a品推介／銷售給適當?shù)娜诉@一基本內涵,消除金融消費者與金融機構之間的實質上的不平等關系,從而保護金融消費者的權益。在金融市場較為成熟的國家,將這一制度明確規(guī)定于法律中,從客戶分類、金融機構勸誘行為規(guī)制以及法律責任等方面做出了詳盡的規(guī)定。適當性原則雖然以信義義務作為其最基本的理論依據(jù),但在大陸法系國家亦有適用的基礎,其內涵并未超過誠實信用原則的范圍。 在適當性原則的適用中,金融機構作為義務主體,在進行金融產品交易時,需承擔因違反匹配度要求,風險提示等適當性義務而引起的相應的民事責任。結合我國金融消費者保護現(xiàn)狀,一方面,我國并未對金融消費者作明確的法律界定,另一方面目前對于適當性原則的規(guī)定亦散落于行政法規(guī)、規(guī)章、交易所規(guī)定及行業(yè)自律規(guī)范中,存在一定的不足,完善適當性原則在我國有關金融法律中的規(guī)定并最終做出制度上的統(tǒng)合設計,對于保護金融消費者具有現(xiàn)實意義。
[Abstract]:Since the global financial crisis in 2008, how to strengthen the regulation, restrain the excessive liberalization of financial market, solve the systemic risk of financial market and protect investors' rights and interests has become a topic of common concern all over the world. With the acceleration of the internationalization of the financial market, the endless emergence of financial innovation, the increasingly obvious mixed operation, various financial institutions have launched various types of financial products, in the course of the transaction of financial products, As a result of information asymmetry and other reasons, the general public is often in a weak position, resulting in frequent infringement of their property rights and interests. In recent years, "financial consumer" has been widely proposed as a unified concept, across the banking, securities, futures, insurance and other fields, from the perspective of consumer protection of financial products trading for the general public integrated protection. The principle of appropriateness began with the development of the securities field, and as a self-regulatory norm in the industry gradually transitioned to the provisions of the law, through which certain obligations were added to the financial institutions by means of the curriculum. The system embodies the basic connotation of promoting / selling appropriate financial products to the right people, eliminating the substantial unequal relationship between financial consumers and financial institutions, and thus protecting the rights and interests of financial consumers. In the countries with mature financial market, this system is clearly defined in the law, including the classification of customers, the regulation of inducement behavior of financial institutions and the legal liability, etc. Although the principle of appropriateness takes the duty of credit as its most basic theoretical basis, it also has the basis of application in the countries of the continental law system, and its connotation does not exceed the scope of the principle of good faith. In the application of the principle of appropriateness, the financial institution, as the subject of obligation, should bear the corresponding civil liability due to breach of the appropriateness obligation, such as matching degree requirement, risk indication and so on, in the transaction of financial products. Combined with the current situation of financial consumer protection in China, on the one hand, China has not made a clear legal definition of financial consumers, on the other hand, the current provisions on the principle of appropriateness are scattered in administrative regulations and regulations. There are some deficiencies in the regulation of exchange and industry self-discipline. It is of practical significance to perfect the regulation of appropriateness in the relevant financial laws of our country and finally to make a unified design of the system. It is of practical significance to protect the financial consumers.
【學位授予單位】：上海社會科學院
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D922.28;D923.8
本文編號：2457497
[Abstract]:Since the global financial crisis in 2008, how to strengthen the regulation, restrain the excessive liberalization of financial market, solve the systemic risk of financial market and protect investors' rights and interests has become a topic of common concern all over the world. With the acceleration of the internationalization of the financial market, the endless emergence of financial innovation, the increasingly obvious mixed operation, various financial institutions have launched various types of financial products, in the course of the transaction of financial products, As a result of information asymmetry and other reasons, the general public is often in a weak position, resulting in frequent infringement of their property rights and interests. In recent years, "financial consumer" has been widely proposed as a unified concept, across the banking, securities, futures, insurance and other fields, from the perspective of consumer protection of financial products trading for the general public integrated protection. The principle of appropriateness began with the development of the securities field, and as a self-regulatory norm in the industry gradually transitioned to the provisions of the law, through which certain obligations were added to the financial institutions by means of the curriculum. The system embodies the basic connotation of promoting / selling appropriate financial products to the right people, eliminating the substantial unequal relationship between financial consumers and financial institutions, and thus protecting the rights and interests of financial consumers. In the countries with mature financial market, this system is clearly defined in the law, including the classification of customers, the regulation of inducement behavior of financial institutions and the legal liability, etc. Although the principle of appropriateness takes the duty of credit as its most basic theoretical basis, it also has the basis of application in the countries of the continental law system, and its connotation does not exceed the scope of the principle of good faith. In the application of the principle of appropriateness, the financial institution, as the subject of obligation, should bear the corresponding civil liability due to breach of the appropriateness obligation, such as matching degree requirement, risk indication and so on, in the transaction of financial products. Combined with the current situation of financial consumer protection in China, on the one hand, China has not made a clear legal definition of financial consumers, on the other hand, the current provisions on the principle of appropriateness are scattered in administrative regulations and regulations. There are some deficiencies in the regulation of exchange and industry self-discipline. It is of practical significance to perfect the regulation of appropriateness in the relevant financial laws of our country and finally to make a unified design of the system. It is of practical significance to protect the financial consumers.
【學位授予單位】：上海社會科學院
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D922.28;D923.8
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