我国预付式消费凭证法律规制研究

发布时间：2018-09-10 18:00

【摘要】：随着社会经济的不断进步,预付式消费凭证的普及面越来越广,这种新型结算工具不仅方便了消费者和商家的交易活动,而且还促进了社会经济的蓬勃发展。然而,在预付式消费凭证大量发行的同时,由于缺少系统性的法律规制,在预付式消费模式下商家与消费者之间的矛盾纠纷不断,极大地影响和限制我国预付式经济的发展前景。由于我国并没有在法律层面给预付式消费凭证作出准确的定义,因此通过分析其他国家和地区给出的定义,梳理其特征,归纳其分类,总结其法律性质,予以预付式消费凭证以法律界定是极为必要的。我国目前对于预付式消费凭证的法律规范效力层级较低,缺乏统一的专门性规范,在预付式消费中仍然存在合同条款不明确,发行准入、退出机制不健全,危害我国金融监管秩序等问题。为了更好地解决国内预付式消费凭证法律规制的相关问题,不仅需要结合我国国内的实际情况,更加需要借鉴其他国家和地区的先进经验。例如,美国联邦及各州法律着重于对预付式消费凭证具体内容和详细条款的限制；欧盟对于预付式消费凭证的规定主要着重于金融市场方面,并且主要关注对电子货币发行机构的准入、发行等流程进行规范；日本法则主要针对行政机关对于预付式消费凭证发行人的控制方面,发行人在发行前须向主管机关报备发行的数额、已发行未兑现的预付式消费凭证数额等；我国台湾地区一方面明确了“商品(服务)礼券定型化契约应记载及不得记载事项”,另一方面也依靠行业自律加以规范。域外预付式消费凭证法律规制的先进经验给我国现行法律规制带来了诸多启示,针对现存问题,具体可以采取自下而上逐步提升现有规范的效力层级；规范预付式消费凭证合同条款,建立统一的行业性格式合同文本并且规范格式合同备案制度；进一步规范预付式消费凭证的准入、退出机制；明确预付式消费凭证必须记载事项和不得记载事项；完善预付式消费凭证的金融监管制度,建立预付式消费凭证备付金制度,同时加强对预付式消费凭证发行的监管等措施。总之,积极探索建立符合我国国情的预付式消费凭证法律制度,不仅能够有效保护广大消费者的合法权益,而且也会对我国社会经济的发展起到积极地推动作用。
[Abstract]:With the development of social economy, the popularity of prepaid consumer vouchers is becoming wider and wider. This new settlement tool not only facilitates the transaction activities of consumers and merchants, but also promotes the vigorous development of social economy. However, while the prepaid consumption vouchers are issued in large quantities, due to the lack of systematic legal regulation, the conflicts and disputes between merchants and consumers are constantly under the prepaid consumption pattern. Greatly affects and limits the development prospect of our country's prepaid economy. Because our country has not made the accurate definition to the prepaid consumption voucher in the legal level, therefore through the analysis other countries and the region gives the definition, combs its characteristic, induces its classification, summarizes its legal nature, It is very necessary to define the consumption voucher in advance by law. At present, the legal and normative level of prepaid consumption vouchers in our country is relatively low, and there is a lack of unified specialized norms. In prepaid consumption, the terms of contracts are still unclear, the issuing access mechanism is not perfect, and the exit mechanism is not perfect. Harm our financial supervision order and other issues. In order to solve the related problems of legal regulation of domestic prepaid consumption vouchers, it is necessary not only to combine the actual situation of our country, but also to learn from the advanced experience of other countries and regions. For example, federal and state laws in the United States focus on restrictions on the specific content and detailed terms of prepaid consumer receipts; EU regulations on prepaid consumer receipts mainly focus on financial markets. And it is mainly concerned with standardizing the access and issuing processes of electronic money issuing institutions; Japanese rules mainly focus on the control of prepaid consumer voucher issuers by the administrative authorities. The issuer is required to report to the competent authority the amount of the issue and the amount of prepaid consumer vouchers that have been issued. On the one hand, the Taiwan region of China has made it clear that "the contract of formalization of commodity (service) coupons shall and must not be recorded." On the other hand also rely on industry self-discipline to regulate. The advanced experience in the legal regulation of overseas prepaid consumption vouchers has brought a lot of enlightenment to the current legal regulation of our country. In view of the existing problems, we can take the bottom-up step by step to enhance the effectiveness level of the existing norms; Standardizing the contract terms of prepaid consumption voucher, establishing a unified contract text of industry format and standardizing the filing system of format contract, further standardizing the admission and withdrawal mechanism of prepaid consumption voucher; It should be clear that items must be recorded and not recorded in prepaid consumption vouchers, perfect the financial supervision system of prepaid consumption vouchers, establish prepaid consumption voucher reserve system, and strengthen the supervision over the issue of prepaid consumption vouchers, and so on. In a word, it is not only effective to protect the legitimate rights and interests of consumers, but also to promote the social and economic development of our country actively to explore and establish the legal system of prepaid consumption voucher in accordance with the national conditions of our country.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8;D923.6

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