我国信用卡不公平条款的法律规制研究
发布时间：2018-07-29 06:01
【摘要】：随着信用卡使用者的增多,在互联网时代对于消费者群体而言,现金抑或支票已经变成了一种落后的支付手段,消费者购买商品或者服务时最习惯的支付方式将不是现金抑或支票等纸质化手段而是信用卡等便利化工具。我们也不得不注意到,伴随着信用卡使用量的增多,信用卡纠纷数量也日益增多,这些纠纷很多都是与银行提供的信用卡章程或者领用合约中存在的不公平条款有关。这导致银行违规操作频发,信用卡诉讼大量增长,所以对信用卡不公平条款从制度上进行研究显得尤为重要。近年来随着信用卡业务的快速发展,商业银行在信用卡业务的开展与运作中也出现了很多棘手的问题,其中信用卡不公平条款滥用问题不仅损害了信用卡持卡人的权益,同时也对发卡行业务健康发展造成不利影响。持卡人的合法权利经常被发卡行以信用卡合同不公平条款的方式所剥夺,诸如发卡行可以任意变更信用卡相关合约却不需要持卡人的同意、发卡行随意将信用卡冒用风险转嫁给持卡人、持卡人的私人信息屡遭泄露、持卡人不得以对特约商户的事由向发卡行主张抗辩等等。在我国,银行作为信用卡格式合同的制订者,其运用相应的独占地位和经济上的优势减轻自己的责任的动机十分强烈。持卡人基于自身的弱势地位,只能被动接受对其不公的条款,其合法权益受到严重损害。然而持卡人作为金融市场的关键要素,其需求支撑着整个信用市场的发展,任何市场的发展都不能以牺牲持卡人的利益为代价,我国的信用卡市场亦是如此。本文重点是对信用卡不公平条款规制进行研究,以期为规范我国信用卡条款提出有针对性的建设性建议。本文围绕信用卡不公平条款中信息披露条款、抗辩切断条款、冒用风险分配条款、侵犯持卡人隐私权条款四大条款,从信用卡相关的概念、法律关系到我国对信用卡不公平条款的监管与法律规制现状进行剖析,发掘其中存在的问题与原因,再结合域外发达国家的先进规制经验,对我国信用卡不公平条款的规制从指导思想到监管制度,法律体系以及具体制度提出一些建议。
[Abstract]:With the increase of credit card users, in the Internet age, cash or checks have become a backward means of payment. The most customary way for consumers to buy goods or services will not be cash or checks, such as credit cards and other facilitation tools. We also have to It is noted that with the increase in the amount of credit card use, the number of credit card disputes is increasing. Many of these disputes are related to the bank's credit card regulations or the unfair terms in the leading contract. This leads to the frequent illegal operation of the banks and the large increase in the credit card litigation, so the unfair terms of the credit card are from the system. In recent years, with the rapid development of credit card business, commercial banks have also appeared many difficult problems in the development and operation of credit card business. The abuse of unfair credit card clauses not only damages the rights and interests of credit card holders, but also causes the healthy development of the card business. The legitimate rights of the cardholder are often deprived by the issuing bank in the way of the unfair terms of the credit card contract, such as the issuing bank can change the credit card related contracts arbitrarily without the consent of the cardholder, and the issuing bank will freely transfer the credit card to the cardholder, the cardholder's personal information is repeatedly leaked, the cardholder is not allowed to do so. In our country, in our country, the bank, as the maker of the credit card format contract, has a strong motivation to reduce its responsibility by using the corresponding exclusive and economic advantages. The cardholder can only accept the unfair terms and its legal rights based on its own weak position. However, as the key element of the financial market, the cardholder's demand supports the development of the whole credit market, and the development of any market can not be at the expense of the interests of the cardholders. The credit card market in China is also the same. This article focuses on the research on the regulation of the unfair terms of the credit card, with a view to the standard. China's credit card terms put forward constructive suggestions. This paper, focusing on the information disclosure clause in the unfair terms of the credit card, the defense cut off the clause, the risk distribution clause, violated the four clauses of the cardholder's privacy terms, from the concept of credit card related, the legal relation to the regulation and law of the unfair terms of the credit card in our country. The current situation of regulation is analyzed, the existing problems and reasons are explored, and the advanced regulation experience of developed countries in foreign countries is combined, and some suggestions are made for the regulation of the unfair terms of the credit card from the guiding ideology to the supervision system, the legal system and the specific system.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.28
，
本文编号：2151757
[Abstract]:With the increase of credit card users, in the Internet age, cash or checks have become a backward means of payment. The most customary way for consumers to buy goods or services will not be cash or checks, such as credit cards and other facilitation tools. We also have to It is noted that with the increase in the amount of credit card use, the number of credit card disputes is increasing. Many of these disputes are related to the bank's credit card regulations or the unfair terms in the leading contract. This leads to the frequent illegal operation of the banks and the large increase in the credit card litigation, so the unfair terms of the credit card are from the system. In recent years, with the rapid development of credit card business, commercial banks have also appeared many difficult problems in the development and operation of credit card business. The abuse of unfair credit card clauses not only damages the rights and interests of credit card holders, but also causes the healthy development of the card business. The legitimate rights of the cardholder are often deprived by the issuing bank in the way of the unfair terms of the credit card contract, such as the issuing bank can change the credit card related contracts arbitrarily without the consent of the cardholder, and the issuing bank will freely transfer the credit card to the cardholder, the cardholder's personal information is repeatedly leaked, the cardholder is not allowed to do so. In our country, in our country, the bank, as the maker of the credit card format contract, has a strong motivation to reduce its responsibility by using the corresponding exclusive and economic advantages. The cardholder can only accept the unfair terms and its legal rights based on its own weak position. However, as the key element of the financial market, the cardholder's demand supports the development of the whole credit market, and the development of any market can not be at the expense of the interests of the cardholders. The credit card market in China is also the same. This article focuses on the research on the regulation of the unfair terms of the credit card, with a view to the standard. China's credit card terms put forward constructive suggestions. This paper, focusing on the information disclosure clause in the unfair terms of the credit card, the defense cut off the clause, the risk distribution clause, violated the four clauses of the cardholder's privacy terms, from the concept of credit card related, the legal relation to the regulation and law of the unfair terms of the credit card in our country. The current situation of regulation is analyzed, the existing problems and reasons are explored, and the advanced regulation experience of developed countries in foreign countries is combined, and some suggestions are made for the regulation of the unfair terms of the credit card from the guiding ideology to the supervision system, the legal system and the specific system.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.28
，
本文编号：2151757
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