我国预付卡监管法律制度研究

发布时间：2018-02-10 14:55

本文关键词： 预付卡监管制度消费者权益备付金保险信息记载　出处：《中国政法大学》2015年硕士论文　论文类型：学位论文

【摘要】：我国市场经济体系逐步发展壮大,交易方式也不断翻新变化。其中,预付式交易结算模式日益流行,预付卡市场愈见火爆。然而,预付卡市场繁荣的同时,却出现了诸多乱象,消费者权益难以得到有效保护。为此,我国相关监管机构颁布了若干部门规章予以规范,有关预付卡的监管体系初步确立。但是这一规范体系比较简单,尚不足以有效规范整个预付卡市场,亟需进一步健全与完善。预付卡(Prepaid Card)是近些年来市场上广泛存在的一种交易结算手段。因为其将货款提前支出并储存于卡片中,消费者携带方便且不用记名,商家也可提前回笼资金,因此具有广泛的应用领域,深受消费者和商家的喜爱。与其他类卡片不同,预付卡具有预付性、见卡即付性、格式性和小额支付的特征。根据不同标准,预付卡可做不同分类。预付卡不同于一般民事合同法律关系,既不是一般的买卖合同,不同于借贷合同,也不同于货币、证券或其他金融工具。预付卡市场的种种乱象不仅侵害了众多消费者的合法权益,也存在洗钱犯罪的风险,会扰乱金融秩序,更会增加偷税漏税的渠道,因而对其监管十分必要,有利于使其朝着公平与诚信的方向发展。世界各国（地区）对预付卡监管的模式各有特色。美国由数个机构分工协作,并对预付卡做了分类管理,通过信息公开及责任限额制度保护消费者的权益。日本实行以内阁大臣为主的集权监管,对预付卡实施分类申报登记,地位继承制度、保证金与保全契约制度都是日本的重要制度。加拿大魁北克省则规定了告知解释义务和返还余额义务,并要求不得收取额外费用。我国台湾地区规定了预付卡必须记载和不得记载的事项,并采取了多种可选择的履约保证方式。这些制度对我国完善预付卡监管有较好的借鉴意义。我国央行和商务部经过初步探索,发布了若干部门规章来规范预付卡市场。主要的制度框架有:防止擅自挪用客户资金的备付金存管制度;防止行贿受贿等违法行为的实名购卡制度;降低违法犯罪可能性的非现金购卡制度以及若干维护消费者权益制度。但我国的这一制度体系面临着较大的挑战。备付金利息归属有待明确,也尚未有效利用;实名购卡制被重重规避而落实困难;对网络交易平台尚缺乏有效规制;众多非法人企业和个体工商户也并未纳入监管范围。有鉴于此,我国应当在现有框架基础上进一步完善相关制度。首先,用客户备付金产生的利息建立起备付金保险制度;其次,扩大强制性非现金结算的范围;再次,落实实名购卡制度;又次,对网络交易平台预付卡业务实行分类监管;最后,将各类发卡主体全面纳入监管范围,并通过限制发行权、登记备案、信息记载等方式予以规范。
[Abstract]:The market economy system of our country is gradually developing and expanding, and the trading methods are constantly changing. Among them, the prepaid trading and settlement mode is becoming more and more popular, and the prepaid card market is becoming more and more popular. However, while the prepaid card market is booming, there has been a lot of chaos at the same time. It is difficult to effectively protect the rights and interests of consumers. For this reason, the relevant regulatory bodies of our country have promulgated a number of departmental regulations to regulate them, and the regulatory system on prepaid cards has been preliminarily established. However, this regulatory system is relatively simple. It is not enough to regulate the whole prepaid card market effectively, and it needs to be further improved and perfected. Prepaid Card is a widely used transaction settlement method in the market in recent years, because it stores the payment in advance and stores the payment in the card. Consumers are easy to carry and can withdraw funds in advance, so they have a wide range of applications and are deeply loved by consumers and merchants. Unlike other types of cards, prepaid cards are prepaid, see card pay-as-you-go, The characteristics of format and small payment. According to different standards, prepaid cards can be classified differently. Prepaid cards are different from general civil contract legal relations, and are not ordinary contracts of sale and purchase, different from loan contracts, and also different from currencies, Securities or other financial instruments. All kinds of chaos in the prepaid card market not only infringes on the legitimate rights and interests of many consumers, but also has the risk of money laundering crimes, which will disrupt the financial order and increase the channels for tax evasion and tax evasion. Therefore, it is necessary to supervise it, which is conducive to its development towards the direction of fairness and integrity. The modes of prepaid card regulation in various countries (regions) have their own characteristics. The United States has a division of labor and cooperation among several institutions, and has made a classification of prepaid cards. To protect the rights and interests of consumers through the information disclosure and liability limitation system. Japan has implemented centralized supervision by cabinet ministers, classified declaration and registration of prepaid cards, and status inheritance system. Both the bond and preservation contracts are important systems in Japan. Quebec, Canada, imposes an obligation to explain and return the balance. The Taiwan area of our country has stipulated that prepayment cards must be recorded and must not be recorded. And has adopted many kinds of optional performance guarantee methods. These systems have good reference significance for our country to perfect the supervision of prepaid card. The central bank and the Ministry of Commerce of our country have preliminarily explored, A number of departmental regulations have been issued to regulate the prepaid card market. The main institutional frameworks are: the reserve deposit system to prevent unauthorized embezzlement of customer funds; the system of buying cards by real names to prevent illegal acts such as bribery and bribery; The system of non-cash purchase card and some system of safeguarding consumer's rights and interests, which can reduce the possibility of illegal crime, but the system of our country is faced with great challenge, the ownership of interest of reserve fund is not clear, and it has not been used effectively. The real name purchase card system is difficult to implement due to its circumvention; there is still a lack of effective regulation on the online trading platform; and many unincorporated enterprises and individual industrial and commercial households have not been included in the scope of supervision. China should further improve the relevant systems on the basis of the existing framework. Firstly, the reserve insurance system should be established with the interest generated by the customer reserve; secondly, the scope of compulsory non-cash settlement should be expanded; thirdly, the system of real name purchase cards should be implemented. Again, the network trading platform prepaid card business classification supervision; finally, all kinds of card issuers into the scope of supervision, and by restricting the right to issue, registration and filing, information recording and other ways to regulate.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.28

【相似文献】