金融消费者保护之适当性原则研究
发布时间：2019-04-13 11:05
【摘要】：自2008年全球金融危机以来,如何加强监管,抑制金融市场过度自由化,解决金融市场系统性风险从而保护投资者权益成为世界各国共同关注的话题。随着金融市场国际化进程加速,金融创新的层出不穷,混业经营愈加明显,各金融机构纷纷推出各类金融产品,在金融产品交易的过程中,普通公众由于信息不对称等原因往往处于弱势导致其财产权益屡遭侵害。近年来,“金融消费者”作为一个统合概念被广泛提起,横跨了银行、证券、期货、保险等各领域,从消费者保护的角度对进行金融产品交易的普通公众进行统合保护。 适当性原则从证券领域发展而起,作为一项行业自律规范逐渐过渡到法律规定,通过课加于金融机构一定义务,在制度上体现将适当的金融产品推介／销售给适当的人这一基本内涵,消除金融消费者与金融机构之间的实质上的不平等关系,从而保护金融消费者的权益。在金融市场较为成熟的国家,将这一制度明确规定于法律中,从客户分类、金融机构劝诱行为规制以及法律责任等方面做出了详尽的规定。适当性原则虽然以信义义务作为其最基本的理论依据,但在大陆法系国家亦有适用的基础,其内涵并未超过诚实信用原则的范围。 在适当性原则的适用中,金融机构作为义务主体,在进行金融产品交易时,需承担因违反匹配度要求,风险提示等适当性义务而引起的相应的民事责任。结合我国金融消费者保护现状,一方面,我国并未对金融消费者作明确的法律界定,另一方面目前对于适当性原则的规定亦散落于行政法规、规章、交易所规定及行业自律规范中,存在一定的不足,完善适当性原则在我国有关金融法律中的规定并最终做出制度上的统合设计,对于保护金融消费者具有现实意义。
[Abstract]:Since the global financial crisis in 2008, how to strengthen the regulation, restrain the excessive liberalization of financial market, solve the systemic risk of financial market and protect investors' rights and interests has become a topic of common concern all over the world. With the acceleration of the internationalization of the financial market, the endless emergence of financial innovation, the increasingly obvious mixed operation, various financial institutions have launched various types of financial products, in the course of the transaction of financial products, As a result of information asymmetry and other reasons, the general public is often in a weak position, resulting in frequent infringement of their property rights and interests. In recent years, "financial consumer" has been widely proposed as a unified concept, across the banking, securities, futures, insurance and other fields, from the perspective of consumer protection of financial products trading for the general public integrated protection. The principle of appropriateness began with the development of the securities field, and as a self-regulatory norm in the industry gradually transitioned to the provisions of the law, through which certain obligations were added to the financial institutions by means of the curriculum. The system embodies the basic connotation of promoting / selling appropriate financial products to the right people, eliminating the substantial unequal relationship between financial consumers and financial institutions, and thus protecting the rights and interests of financial consumers. In the countries with mature financial market, this system is clearly defined in the law, including the classification of customers, the regulation of inducement behavior of financial institutions and the legal liability, etc. Although the principle of appropriateness takes the duty of credit as its most basic theoretical basis, it also has the basis of application in the countries of the continental law system, and its connotation does not exceed the scope of the principle of good faith. In the application of the principle of appropriateness, the financial institution, as the subject of obligation, should bear the corresponding civil liability due to breach of the appropriateness obligation, such as matching degree requirement, risk indication and so on, in the transaction of financial products. Combined with the current situation of financial consumer protection in China, on the one hand, China has not made a clear legal definition of financial consumers, on the other hand, the current provisions on the principle of appropriateness are scattered in administrative regulations and regulations. There are some deficiencies in the regulation of exchange and industry self-discipline. It is of practical significance to perfect the regulation of appropriateness in the relevant financial laws of our country and finally to make a unified design of the system. It is of practical significance to protect the financial consumers.
【学位授予单位】：上海社会科学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.28;D923.8
本文编号：2457497
[Abstract]:Since the global financial crisis in 2008, how to strengthen the regulation, restrain the excessive liberalization of financial market, solve the systemic risk of financial market and protect investors' rights and interests has become a topic of common concern all over the world. With the acceleration of the internationalization of the financial market, the endless emergence of financial innovation, the increasingly obvious mixed operation, various financial institutions have launched various types of financial products, in the course of the transaction of financial products, As a result of information asymmetry and other reasons, the general public is often in a weak position, resulting in frequent infringement of their property rights and interests. In recent years, "financial consumer" has been widely proposed as a unified concept, across the banking, securities, futures, insurance and other fields, from the perspective of consumer protection of financial products trading for the general public integrated protection. The principle of appropriateness began with the development of the securities field, and as a self-regulatory norm in the industry gradually transitioned to the provisions of the law, through which certain obligations were added to the financial institutions by means of the curriculum. The system embodies the basic connotation of promoting / selling appropriate financial products to the right people, eliminating the substantial unequal relationship between financial consumers and financial institutions, and thus protecting the rights and interests of financial consumers. In the countries with mature financial market, this system is clearly defined in the law, including the classification of customers, the regulation of inducement behavior of financial institutions and the legal liability, etc. Although the principle of appropriateness takes the duty of credit as its most basic theoretical basis, it also has the basis of application in the countries of the continental law system, and its connotation does not exceed the scope of the principle of good faith. In the application of the principle of appropriateness, the financial institution, as the subject of obligation, should bear the corresponding civil liability due to breach of the appropriateness obligation, such as matching degree requirement, risk indication and so on, in the transaction of financial products. Combined with the current situation of financial consumer protection in China, on the one hand, China has not made a clear legal definition of financial consumers, on the other hand, the current provisions on the principle of appropriateness are scattered in administrative regulations and regulations. There are some deficiencies in the regulation of exchange and industry self-discipline. It is of practical significance to perfect the regulation of appropriateness in the relevant financial laws of our country and finally to make a unified design of the system. It is of practical significance to protect the financial consumers.
【学位授予单位】：上海社会科学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.28;D923.8
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