网上银行业务的法律规制与风险防范
发布时间：2019-04-16 10:41
【摘要】：网上银行业务,是指银行通过因特网提供的金融服务。目前国内网上银行业务主要有个人网银与企业网银,业务品种主要有查询、转帐、代缴费、速汇通、网上购物支付以及银证转帐、外汇买卖、代发代扣、B2B(Business to Business)网上支付及国际业务、集团理财等。 20世纪90年代以来,电子商务高速发展,有力地推动了网上银行业务的发展。由于网上银行业务是一种全新的银行业务,相关立法和监管规定的缺位和不足,导致网上银行业务在开展过程中出现一系列的法律问题。为了保障该项业务的健康有序地发展,必须加强规范管理,切实加大监管力度。对网上银行设定严格的市场准入条件,完善市场准入程序,要求开展该项业务的银行必须履行规定的申请、审批以及备案等手续。 针对网上银行在发展过程中出现的大量的法律问题,需要立法及时跟进,进行相关的法律规制。虽然《中华人民共和国电子签名法》和《电子认证服务业管理办法》出台后,对界定银行与客户之间的权利义务,明确网上银行业务中产生的法律责任具有重要作用。但是很多法律法规需要进一步建立、健全和完善。必须修改中国人民银行出台的《网上银行业务管理暂行办法》;健全数字化货币发行法律体系;完善有关民商法的法律制度;有必要尽快完善民事诉讼法的相关规定;网络银行涉及的网络犯罪问题种类繁多,现行刑法已难以进行有效规范,有必要对刑法进行立法变革等等。由于在网上银行业务中消费者处于相对弱势的一方,在结合国外实践的基础上,笔者从法律角度提出了对消费者进行特殊保护的方法和措施:一是消费者和银行的各自防范措施,如消费者个人注意防止交易工具的遗失、密码的泄露;二是国家以法律的方式确立强制性的消费者保护机制。另外,网络的国际化、全球化促成了以网络为基础的网上银行业务及其有关法律问题的国际化。鉴于此,笔者还提出跨国网上银行业务中法律适用与管辖权冲突问题的解决途径:一是国内法制的途径,即通过国内冲突法来确定所适用的法律及管辖法院;二是通过国际协调的途径解决,即由国家之间的双边或多边的协定使法律冲突和管辖权冲突得以解决。
[Abstract]:Internet banking business refers to the financial services provided by banks through the Internet. At present, there are mainly personal and enterprise online banking in domestic online banking business. The main types of business include inquiry, transfer of accounts, payment of fees, express remittance, online shopping and payment and transfer of bank certificates, foreign exchange trading, issuance and withholding. B2B (Business to Business) online payment and international business, group finance and so on. Since the 1990s, the rapid development of e-commerce has effectively promoted the development of online banking business. As the online banking business is a brand-new banking business, there are a series of legal problems in the development of online banking business due to the absence and deficiency of the relevant legislation and regulation. In order to ensure the healthy and orderly development of this business, it is necessary to strengthen the standard management and strengthen the supervision. In order to establish strict market access conditions and perfect market access procedures for internet banks, banks carrying out this business are required to perform the prescribed procedures such as application, examination and approval, and record-keeping. In view of a large number of legal problems in the development of online banking, legislation should be followed up in time and related laws and regulations should be carried out. Although the Law of the people's Republic of China on Electronic signature and the measures for the Administration of Electronic Certification Services have been issued, they will play an important role in defining the rights and obligations between banks and customers and clarifying the legal liability arising from online banking. However, many laws and regulations need to be further established, sound and perfect. We must revise the interim measures for the Administration of online Banking issued by the people's Bank of China, perfect the legal system of digital currency issuance, improve the legal system of civil and commercial laws, and improve the relevant provisions of the Civil procedure Law as soon as possible. There are many kinds of network crimes involved in the network bank. The current criminal law is difficult to effectively regulate, it is necessary to carry on the legislative reform to the criminal law and so on. Because in the online banking business consumers are in a relatively weak side, on the basis of combining the practice of foreign countries, From the legal point of view, the author puts forward the methods and measures of special protection for consumers: first, the respective preventive measures of consumers and banks, such as consumers' personal attention to prevent the loss of trading tools, password leakage; The second is that the state establishes the compulsory consumer protection mechanism in the way of law. In addition, the internationalization of the network promotes the internationalization of the network-based online banking business and its related legal issues. In view of this, the author also puts forward the solutions to the conflict between the application of law and jurisdiction in the transnational online banking business: first, the way of domestic legal system, that is, to determine the applicable law and the competent court through the internal conflict law; The other is to solve the conflict of laws and jurisdiction by means of international coordination, that is, the bilateral or multilateral agreement between States can resolve the conflict of laws and jurisdiction.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D923;D922.28
本文编号：2458707
[Abstract]:Internet banking business refers to the financial services provided by banks through the Internet. At present, there are mainly personal and enterprise online banking in domestic online banking business. The main types of business include inquiry, transfer of accounts, payment of fees, express remittance, online shopping and payment and transfer of bank certificates, foreign exchange trading, issuance and withholding. B2B (Business to Business) online payment and international business, group finance and so on. Since the 1990s, the rapid development of e-commerce has effectively promoted the development of online banking business. As the online banking business is a brand-new banking business, there are a series of legal problems in the development of online banking business due to the absence and deficiency of the relevant legislation and regulation. In order to ensure the healthy and orderly development of this business, it is necessary to strengthen the standard management and strengthen the supervision. In order to establish strict market access conditions and perfect market access procedures for internet banks, banks carrying out this business are required to perform the prescribed procedures such as application, examination and approval, and record-keeping. In view of a large number of legal problems in the development of online banking, legislation should be followed up in time and related laws and regulations should be carried out. Although the Law of the people's Republic of China on Electronic signature and the measures for the Administration of Electronic Certification Services have been issued, they will play an important role in defining the rights and obligations between banks and customers and clarifying the legal liability arising from online banking. However, many laws and regulations need to be further established, sound and perfect. We must revise the interim measures for the Administration of online Banking issued by the people's Bank of China, perfect the legal system of digital currency issuance, improve the legal system of civil and commercial laws, and improve the relevant provisions of the Civil procedure Law as soon as possible. There are many kinds of network crimes involved in the network bank. The current criminal law is difficult to effectively regulate, it is necessary to carry on the legislative reform to the criminal law and so on. Because in the online banking business consumers are in a relatively weak side, on the basis of combining the practice of foreign countries, From the legal point of view, the author puts forward the methods and measures of special protection for consumers: first, the respective preventive measures of consumers and banks, such as consumers' personal attention to prevent the loss of trading tools, password leakage; The second is that the state establishes the compulsory consumer protection mechanism in the way of law. In addition, the internationalization of the network promotes the internationalization of the network-based online banking business and its related legal issues. In view of this, the author also puts forward the solutions to the conflict between the application of law and jurisdiction in the transnational online banking business: first, the way of domestic legal system, that is, to determine the applicable law and the competent court through the internal conflict law; The other is to solve the conflict of laws and jurisdiction by means of international coordination, that is, the bilateral or multilateral agreement between States can resolve the conflict of laws and jurisdiction.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D923;D922.28
【参考文献】
相关期刊论文 前2条
1 刘卫宁,宋伟;电子商务中在线支付的安全保障[J];计算机应用;1999年07期
2 郇涛,房世晖;浅论网上银行业务监管[J];济南金融;2002年05期
，本文编号：2458707
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