完善我国第三方支付沉淀资金及利息的法律监管

发布时间：2018-02-23 18:51

本文关键词： 第三方支付沉淀资金利息法律监管　出处：《中国海洋大学》2015年硕士论文　论文类型：学位论文

【摘要】：第三方支付的广泛应用带来了巨大的经济效益,与此同时,也造成了资金大规模的沉淀。为了严格监管第三方支付机构并预防其沉淀资金所面临风险,中国人民银行于2013年6月出台《支付机构客户备付金存管办法》。但是该办法对其产生的利息并没有明确规定,由此产生的利息权属问题引起了法学界激烈的探讨。文章从沉淀资金形成机理入手,查找我国现有规定,分析其发展现状,并指出其存在的法律问题。之后通过借鉴国外经验,提出适合我国现状的法律建议。文章具体分为四大部分。首先简单介绍第三方支付以及沉淀资金,并探讨了沉淀资金形成机理。第三方支付即为连接银行与用户并为用户提供信誉保障的独立的电子支付方式。沉淀资金即用户委托支付机构代为支付时存入的资金,也就是支付机构实际收到且尚未支付的资金。其主要来源于在途资金和支付工具吸存资金两个方面。之后查找我国现有关于沉淀资金及利息的监管规定,分析了其现状并提出其不足之处,包括规制的法律位阶偏低、监管对象存在遗漏、监管主体单一化、所有权归属方面定位模糊等。在分析我国现状之后,又分别研究了美国、欧盟地区对第三方支付进行规制或引导的法律、政策以及监管体制,密切研究和关注其第三方支付机构的问题,尤其是沉淀资金及其利息问题。美国主要是依靠现行法律调整第三方支付机构,且将其定义为非金融机构,对沉淀资金的监管采取存款延伸保险制度。欧盟则是采取专门立法的方式约束第三方支付机构,并将其纳入金融机构的范畴,对沉淀资金的监管实行风险保证金制度。最后参考国外立法及实践经验,针对我国沉淀资金及利息的立法提出建议。首先从理论出发,理清第三方支付当事人间的法律关系,认定沉淀资金法律性质,对沉淀资金全面了解、准确定位。并且在明确沉淀资金及利息的所有权归属于用户的前提下,提出可以将利息的部分使用权让给第三方支付机构的设想。此举除了能节约利息分配的费用,还能利用利息弥补其提供免费代收代付担保服务的成本,并在保障用户权益方面有所作为,使得用户能更好的享受到沉淀资金利息所带来的利益。之后便以理论指导实践,以性质决定措施,从而采取建立并实行沉淀资金专有账户管理制度、存款延伸保险制度以及保证金制度,构建以央行为主、其他专业部门为辅的法律监管体系,建立健全的第三方支付行业自律机制,适时开发沉淀资金的融资化、基金化等针对其特性的措施。通过实施这一系列措施,以保证第三方支付行业能发挥出其最大优势。
[Abstract]:The extensive application of third-party payment has brought enormous economic benefits, at the same time, it has also resulted in large-scale deposit of funds. In order to strictly supervise third-party payment organizations and prevent them from facing risks of depositing funds, On June 2013, the people's Bank of China issued the procedures for the Deposit and Control of customer Reserve funds of payment institutions. However, the interest generated by this method is not clearly stipulated. The problem of interest ownership has aroused intense discussion in the field of law. This paper starts with the formation mechanism of precipitated funds, looks up the existing regulations of our country, analyzes the present situation of their development, and points out the legal problems existing in them, and then points out the existing legal problems by drawing lessons from foreign experience. The article is divided into four parts. First of all, a brief introduction of third-party payment and precipitation of funds, Third party payment is an independent electronic payment method that connects the bank with the user and provides the credit guarantee for the user. The precipitated fund is the funds deposited when the user entrusts the payment organization to pay on behalf of the bank, the third party payment is the independent electronic payment method that connects the bank with the user and provides the credit guarantee for the user. That is, the funds actually received and not yet paid by the payment organizations. The main sources of these funds are in the two aspects of travelling funds and funds drawn up by means of means of payment. After that, we will find out the existing regulations on the regulation of precipitation funds and interest in our country. This paper analyzes its present situation and puts forward its shortcomings, including the low legal rank of regulation, the omission of the regulatory object, the simplification of the subject of supervision, the ambiguity of ownership, etc. After analyzing the present situation of our country, the author studies the United States separately. The laws, policies and regulatory systems governing or guiding third-party payments in the European Union region, closely studying and paying close attention to the problems of its third-party payment agencies, In particular, the issue of depositing funds and their interest. The United States mainly relies on existing laws to adjust third-party payment institutions and define them as non-financial institutions. Deposit extension insurance system is adopted in the regulation of settling funds. The EU adopts special legislation to bind third party payment institutions and bring them into the scope of financial institutions. In the end, referring to foreign legislation and practical experience, the author puts forward some suggestions on the legislation of precipitation fund and interest in our country. First of all, from the theory, it clarifies the legal relationship between the third party who pays the money. To determine the legal nature of the precipitated funds, to have a comprehensive understanding of the precipitated funds, and to position them accurately. And on the premise that the ownership of the precipitated funds and interest is vested in the users, The idea of ceding part of the right to use interest to a third-party payment institution is put forward. In addition to saving the cost of interest distribution, it can also use interest to cover the cost of providing a free collection and payment guarantee service. And in the protection of the rights and interests of users, so that users can better enjoy the benefits brought about by the deposit of interest on funds. Then the theory will guide the practice, the nature of the decision measures, Thus, we should establish and implement the special account management system for settling funds, the deposit extension insurance system and the margin system, and construct a legal supervision system, which is dominated by the central bank and supplemented by other specialized departments. To establish a sound self-discipline mechanism of third-party payment industry, to develop the financing of precipitated funds in good time, and other measures aimed at its characteristics, to ensure that the third party payment industry can bring its greatest advantage into full play by implementing this series of measures.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.28

【相似文献】