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On The Criminal Protection Of Financial Consumers

Posted on:2015-11-15Degree:DoctorType:Dissertation
Country:ChinaCandidate:C J HuFull Text:PDF
GTID:1106330467458691Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The21stcentury, especially in the wake of the global financial crisis in2008, haswitnessed transformation from the investment service law to the consumption servicelaw all over the world. Advanced financial countries including the US, EU and Japanhave learned lessons from the financial crisis to formulate or perfect the financialconsumer protection law, or the financial goods transaction law, or the financial goodssales law, aiming at strengthen protection of the financial consumers. Criminalprotection, as an important part, is necessary to be studied specially.In terms of the study of the criminal protection of financial consumers, one mustclosely combine a range of regulations on protection of financial consumers with theparticularity of the status of the said consumers. The author explores in thisdissertation the protection of the financial consumers, a special and up-to-the-momentsubject, from the criminal perspective.The dissertation is divided into six chapters. The first chapter is an outline of thecriminal protection of the financial consumers. The second chapter deals with thescope and classification of the said protection. The third chapter involves the study ofthe protection of the financial consumers in the classification of accusations in thecriminal law. The fourth chapter studies the legislature mode of the criminalprotection of the financial consumers. The fifth chapter researches on the policy of thesaid protection. The sixth chapter offers suggestions on perfecting the criminalprotection of the financial consumers.Chapter One–An Outline of Criminal Protection of Financial Consumersin four sectionsSection One defines the financial consumer. Based on the comparison of thefinancial consumer between home and abroad and in combination with the relevantlaws in China, the author thinks that the financial consumer should be defined as theperson receiving the financial goods and services offered by the financial serviceindustry, excluding professional investment organizations as well as the natural and legal person with certain financial resources or professional capability who areengaged in financial goods transactions which requires market entry threshold. Theauthor also differentiates and analyses definitions including the financial consumer,the criminal victim, and the financial investor in this section.Section Two mainly expounds the rights and interests of the financial consumer.Among a number of the said rights and interests, the core lies in the right of assetssecurity, that of fair choice, and that of information protection, which should be thefocus of protection.Section Three explores the features and value of the criminal protection of thefinancial consumers. In terms of the feature, the criminal protection is the last barrierprotecting the financial consumers and it is mainly subject to the administrativeregulations and to factors of policy and market. Furthermore, it features intertwiningof indirect protection and direct protection.The value of the criminal protection looks at the general and special preventionof the criminal strike. The general prevention includes maintenance of the stability ofthe financial market, protection of the development in the financial sector, innovationof the financial tools, prevention and reduction of crimes infringing upon thelegitimate rights and interests of the financial consumers. On the other hand, thespecial prevention comprises reduction and recovery of the losses of the financialconsumers, punishment of perpetrator encroaching upon the legitimate rights andinterests of the financial consumers, reduction and deprivation of the perpetrator’sability of committing the crime again.Chapter Two--Scope and Classification of Criminal Protection of FinancialConsumers in three sectionsSection One mainly sets out two theories on the scope of the criminal protectionof the financial consumers, i.e. the narrow theory and the generalized theory. Theauthor adopts the narrow theory in this paper, that is, the crimes directly encroachingupon the legitimate rights and interests of the financial consumers are regarded as thescope of protection that is researched herein.Section To analyzes the scope and classification of the criminal protection of the financial consumers in Japan, setting forth how Japan defines the scope of suchprotection based on the criteria of different sources of law and that of differentcriminal means.Section Three explores the scope of the criminal protection of the financialconsumers in our country and compares it with that in Japan. Finally, based on thescope of the said protection in our country and in combination with the definition ofthe financial consumer as stated herein,31specific accusations are identifiedregarding encroaching upon the legitimate rights and interests of the financialconsumer in the Criminal Law in our country. Moreover, as per the features of theencroachment as well as differences in the encroachment, the31accusations aredivided into four types:(1) crimes related to fraud;(2) crimes related to the severalcrimes defined by the administrative criminal law;(3) crimes related to the credit cardcrime;(4) crimes related to the protection of the financial consumers. The foregoingscope and classification criteria is an important innovation in this dissertation whichlaunches the research centering on the four types of the crime.Chapter Three–A Study of Protection of Financial Consumers inClassification of Accusations in Criminal law in six sectionsThis chapter is the focus in the dissertation, accounting for one third of the lengthof the article. The main structure mainly involves respective discourse on the fourtypes of accusations as set forth in Chapter Two herein. However, given that the casesof illegal public capital raising and that of protection of the consumers in the Internetfinance are more important, two more sections are dedicated to their discourseseparately.Section One studies the protection of financial consumers centering on the fraud.Through comparison with cases in Japan, the protection of financial consumers whoare victims of the fraud in our country is analyzed. Furthermore, the said protection ofconsumers in the crime of tri-angle fraud is also analyzed. In addition, the authorsuggests determination of the crime of financial fraud through counter thinkingadopted by the consumers in the compound fraud. This is another innovation in thisdissertation. Finally, the author analyzes the protection of the legitimate rights and interests of the financial consumers in the form of the crime quantity.Section Two involves a study of the protection of financial consumers in crimesdefined by the administrative criminal law. To begin with, the protection of financialconsumers in the corresponding administrative crimes encroaching upon thelegitimate rights and interests of the said consumers in Japan is briefed. Next, thesame is analyzed one by one in our country. Finally, the protection in China and Japanis compared.Section Three studies the protection of the financial consumers in the credit cardfraud. The criminal regulations concerning the credit card fraud involving thefinancial consumers both in Japan and China are briefed and discussed. Furthermore,such protection in the relevant accusations in the criminal law in our country isexplored. Finally, the author compares the regulations in this regard in China andJapan.Section Four researches the information crime related to the protection of thefinancial consumers. To begin with, the foregoing crime in Japan and the US isbriefed. Next, the protection of consumers in terms of the crime of disclosure on thefinancial market and that of infringement upon the personal information of thefinancial consumers is analyzed one by one. Finally, such protection in China, Japanand the US is compared and studied.Section Five studies the protection of the financial consumers in cases of illegalpublic capital raising. The author mainly explored several fields including theparticularity of the “victims” in such cases, the procedure of notifying the victims oftheir rights and obligations, the criteria on proving the amount of the crime, theadoption of the principle of tendering advantageous exhibits, the issues to which oneshould pay attention in examining the case, and the system of property protectionunder special circumstances.Section Six involves a study of that of protection of the consumers in the Internetfinance. Firstly, the concept, features, development and evolution of the Internetfinance are introduced. Then the impact of the Internet finance upon the traditionalfinancial institutes and upon the financial consumers. After that the risks in the Internet finance is analyzed. Lastly, the author draws the conclusion that the pace ofsupervision should be accelerated to substantially protect both the consumers andtheir rights and interests. The new financial supervision caused by the “Bitcoin” isalso expounded in this section.Chapter Four--Legislature Mode of Criminal Protection of FinancialConsumers in four sectionsSection One deals with an outline of legislature mode, variety, and factorsaffecting the legislature of the criminal protection.Section Two comments on the legislature mode in terms of the pros and cons ofthe Criminal Code, the slip criminal law and the accessory criminal law. Moreover,the positioning that the amendments to the criminal law is part of the Criminal Codeis also expounded.Section Four compares the legislature mode regarding the criminal protection ofthe financial consumers. The legislature modes of advance finance countries includingGermany, France, Japan, the US, UK, and Canada are selected from two major legalsystems.Section Four involves the legislature mode regarding the criminal protection ofthe financial consumers in our country. After analyzing different views on the saidmode in our country one by one, the author thinks that there is only one suchlegislature mode in China at the moment, i.e. the Criminal Code. Moreover, theinadequacy in terms of the legislature on protection of the financial consumers in theCriminal Code and financial laws and regulations in China is analyzed.Chapter Five–A Study of Policy on Criminal Protection of FinancialConsumers in four sectionsSection One expounds the cornerstone for the policies on the criminal protectionof the financial consumers. Proceeding from the concept of different situations andpolicies, i.e. generalized and narrow, the position that the policy on the said protectiondepends on the idea of the protection is identified. In addition, three theories, namelythe theory of the weak, the theory of complexity and the theory of financial stability inthe criminal protection of the financial consumers are suggested. Section Two compares and studies the policies on the criminal protection of thefinancial consumers in Japan, UK, and Taiwan.Section Three describes the current situation of the policies on the criminalprotection of the financial consumers in our country. The author elaborated onconstruction of the “cooling off period system” and that of the “punitive damagessystem”, the proactive actions of special legislature by the theoretical circle, and theinitial establishment of the supervision framework on protecting the rights andinterests of the consumers.Section Four deals with the function extension of the procuratorate in the policieson the criminal protection of the financial consumers. The author explores furthertransformation of the idea of financial consumer protection by the procuratorate,construction of a system of handling financial crimes professionally, theprocuratorate’s involvement in the public interest litigation of financial cases, andpromotion of the financial supervision through the procuratorate. In terms of the ideaof protecting financial consumers, the author also suggests that the procuratorateshould pay attention to the features of the financial cases, get involved in such casesvigorously, fully understand the original intention of the legislature, perfect theadoption of law, and attach importance to the adoption of the concept of restorativejustice (e.g. criminal reconciliation) in the stage of examination and prosecution.Chapter Six--Suggestions on Perfecting of Criminal Protection of FinancialConsumers in three sectionsSection One involves generalized perfection of the legislature on the criminalprotection. Suggestions are made in terms of the criminal legislature mode, criminalpenalties, administration of justice, skewed protective measures, applicability andequality of the criminal law. In terms of perfection of the legislature mode, thefeatures of the Criminal Code, the slip criminal law and the accessory criminal lawshould be emphasized to construct a more perfect legislature system. In terms ofperfection of the criminal penalty, the author studies the criminal fine, introduction ofthe punitive damages system, and the application of the qualification punishment. Interms of the perfection of the qualification punishment, the author mainly stresses the application of the qualification punishment against an organization.Section Two is the perfection of specific provisions of the criminal legislature onthe financial consumers, including suggestions on strengthening the arm of the lawagainst the credit card crimes, severe strike against the malicious business, punishingillegal debt collection, adding the accusation of fabricating personal documents andseals, and promoting protection of the personal information of the financialconsumers.Section Three concerns the perfection of the litigation procedure for the criminalprotection of the financial consumers. The author mainly explores and discusses theright of the private prosecution granted to the financial consumers, strengthening ofsupervision on cases transferred by the administrative supervisors, and construction ofthe procedure of trial by default against an organization involved in the financialcrimes.
Keywords/Search Tags:Financial consumers, Criminal Protection, Suggestions on Perfecting of Criminal Protection
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