Font Size: a A A

Research On The Legal Protection Of The Rights Of Financial Consumers

Posted on:2010-04-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:D GuoFull Text:PDF
GTID:1116360302466168Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
With the rapid development of modern economy, the financial industry has been an unprecedented prosperity. Financial products and financial services come into everyday life of ordinary consumers beyond imagination. In the securities market, consumers not only buy financial products, banking financial products and investment-linked insurance, but also buy new financial products, even including some financial innovations, financial derivatives, all these have became their choices. At the same time, to meet their financial consumer demand, consumers have widely accepted financial services provided by financial institutions, "financial payer" concept has also been used in the developed countries of financial services industry.Since the 1980s, the world's financial markets developed from strict financial controls to a financial liberalization, the government control of financial markets providers is reduced significantly. In order to maintain the existing market share and customer base, financial service has used a variety of sales tools. With the increasing of choice opportunities, financial consumers'interests are damaged by improper solicitation of financial services and lack of recognition of financial innovations. Began in 2007, the worldwide financial crisis, wake-up call for financial liberalism, the financial consumers are the ultimate victim of the financial crisis. Countries have introduced financial consumer protection laws, actively adjust the Financial Services Act, and take the protection of consumer rights as the core of the financial system reform. Though Chinese financial system reform starts late, but its development is very rapid. With the deepening of financial reform, the issue of consumer rights violations in financial commodities trading begins to surface and shows rapidly expanding trend. As of now, our country has no specialized financial consumer protection laws, relevant laws and regulations for the protection of financial interests of consumers are scattered, vague and unsystematic. In recent years, the financial damage cases of consumer interests have been an endless stream, it is widespread that legal imperfections as well as administrative responsibility and criminal liability instead of civil commitment, the financial consumer protection is difficult to be truly realized. Therefore, it is necessary to specially study the protection of consumer rights.The dispositif of this paper starts from the definition of financial consumers. This is also a fundamental part of the article. First of all, targeting major financial consumers, financial products have different characteristics compared with traditional goods, for example, informational, professional, complexity, high risk, and credit reflected in the financial goods, as well as the reasonable requirements for financial products purchase and use of skills, etc. All these characteristics bring out serious information asymmetry in the financial consume transactions compared with traditional goods consume. Second, the unique characteristics of financial products cause the special nature of the financial spending, that is, intangibility of consumption subject, difficulty to identify in consumption content, uncertainty of the price of access in sales, outstanding persuasive in sales methods, complexity of types and content of goods, and so on. Finance consumption and consumption in the traditional sense there is a huge difference. In traditional consumers'situations, consumers'purchasing goods or receiving services are essential to intuitively know their quality problems, except for specialization, they can see and feel. Yet, for the financial consumers to buy more goods or services reflected in the collection and transmission of information, especially in the rights of securitization, securities paperless today, the existence of a large number of asymmetric information in the transaction makes the status of the strengths and weaknesses of the two contracting parties very obvious. Financial consumers, as the purchaser or user of financial products and the financial services provided by financial institutions, rely heavily on the quality of information, so that the interests are even more special and difficult to maintain. The particularity of the financial spending distinguish from traditional consume, financial products consumer behavior must be spun off from the traditional consumer behavior in order to better protect the rights of consumers of financial products.In the field of law, the study on right is the basis for discipline system construction. This paper argues that the financial consumer rights refer to the rights affirmed by "Consumer Rights Protection Law", that is, consumer in the financial field are able to make or not to make a certain behavior, and require financial service providers to make or not to make a corresponding certain behavior. As consumers in the financial sector, in addition to the general enjoyment of the rights of consumers, the financial consumers also enjoy the financial industry to adapt to the characteristics of a number of rights. With regard to the contents of the financial rights of consumers, researchers have a matter of opinion. This paper argues that, for financial consumers, the rights of consumers under "Consumer Protection Law" should be given, considering their uniqueness, the core should be the right to know, the financial privacy and the claim of the financial consumer, in which financial consumers'right to know is the basis, the claim of financial consumers is indemnity and implementation. Financial consumers'right to know is important because the natural asymmetry of information in financial markets, a serious imbalance in the benefits of information asymmetry focus more emphasis on performance of financial service obligations, ---- especially enhancements and concerns of information disclosure obligations. Right to know of financial consumer should include: fair and free right of access to financial information, real accurate and comprehensive access to financial information, the right to speedy and timely access to financial information. Financial consumer privacy refers to the control and domination rights to their transaction and credit-related information. Specifically, it includes the right of privacy security, privacy control and use, and privacy maintenance. The financial consumers claim right is a method of relief of consumer rights, there is no such right, the financial consumers will not receive compensation and rehabilitation if they are harmed. In addition to this three core rights, the financial consumers also enjoy financial freedom to choose, financial fair trading rights, and so on. In the realization process of financial consumers'rights, as a main body appearing with financial consumers, the performance of financial service obligations is foundation and dependency to realize the rights of financial consumers. In addition, the recognition of the obligations of financial services is also a financial basis for the delineation of extension of consumer rights. Because of the special nature of the financial spending, the provider of products and services should bear higher financial service obligations. Obligations of financial service correspond with those core rights of financial consumers, the unique obligations compared with general operators is reflected in the following areas: information disclosure obligations, protection of privacy obligations (duty of confidentiality), inducement to compliance obligations, and so on. An important aspect to study rights and obligations of financial consumers lies to delineate the boundaries of the obligation of information disclosure and explanation, which is based on the principle of equity interests in the financial services. The principle is that the financial information weakness determines to give more protection to consumers, but if highlight the rights, then obligations increase necessarily. And, if the financial service provider's obligation is not limited appropriately, too much protections of consumer will result in a fatal obstacle to financial markets.For financial consumer protection, we not only design the system from the set of rights and obligations, but also study essential legislation and the evolution of different country and region with a global perspective. Looking at the changes in financial and legal systems of states, the prominent common sense is for financial consumers with an unprecedented attention and protection. Especially, countries actively respond to the financial crisis struck. Whether the changes in regulatory regime, regulatory content changes, expansion of the object to monitor, or the adjustment of the means, all these indicate that the core of the world's financial legal system has been transferred to the financial consumer protection. These show that, countries have been fully aware that complete financial consumer protection system is a common feature of well-developed financial system, also an important factor to constitute the financial system in international competitiveness. Rise and fall of the financial markets have an extremely close relationship with the financial consumers. Financial consumer protection shall be the protection of the financial markets. If the financial regulation only concerned with the interests of financial service demands at the expense of effective protection of financial interests of consumers, it will dampen consumer enthusiasm of the financial consume, thus finance industry will lost wide public base and social support. At present, in view of the response and adjustment to the worldwide financial crisis, the center and purpose of financial legislation has been transferred from financial regulation of the behavior of financial institutions and enterprises to consumer protection. It is specifically shown in the adjustment of the financial regulatory regime, the expansion of the financial supervision objects (financial products), and the content strengthening of financial supervision, and so on. Therefore, strict supervision of financial products and financial services markets, the promotion of transparent, fair and rationality of financial products, to ensure that consumers receive adequate financial products and services relating to financial information, are the financial center of the legal protection of consumers. The evolution of this global transformation is a positive reference to the financial system in our country.In the time of financial globalization, especially in the circumstances of continuous financial crisis, it is extremely urgent for the task on law-making for the purpose of the protection of financial consumers. The choice on the path of the protection for the rights of financial consumers is the point considered in order to build the world's financial services law. The thesis will mainly focus on how to build a theoretical mechanism for the protection of financial consumers. In this paper, for the issue of the choice on the path of financial consumer protection, the author proposes administrative regulation and civil remedies as a parallel building mechanism. It believes that the protection of the rights of financial consumers can't be achieved through any single means and methods. Executive powers of financial supervision can be considered in the exercise of the rights of consumers as an indirect protection means, to achieve the norms of the financial markets, to realize a good environment for the rights of consumers, namely the realization of indirect protection of their rights. Meanwhile, for the actual situation of financial consumer rights damage, we should understand the financial needs of consumers, and introduce the most practical and constructive securities antifraud provisions of the general area of fraud in financial markets to the regulatory system. Accompanied by financial compensation mechanism for consumers, we can design and build the financial multi-tiered system of protection of consumer rights. This paper argues that in view of China's financial sector from the current legislation, the reality has shown a unified regulation for universal banking system, the initial shape, but in a short time to complete unified financial services legislation does not have the practice and legislative conditions. From China's reality, it is unnecessary to scrap the current Securities Law, Banking Law, Insurance Law and other existing financial legislation in order to develop a wide range of financial services form a unified way of enacting the law. Even if the final choice to develop uniform model legislation of the Financial Services Act, it may not adopt a one-time type of financial legal reform model, the same ultimate goal can be achieved by continuously and gradually adjustment. On the current China's actual situation, a separate model of legislation that the securities law, banking law, insurance law coexist with the Financial Services Act, is more suitable for China's national conditions and legal system building needs. As the financial protection of the consumers rights concerns in many areas of legal norms, one law will not able to include and solve, based on which, this article suggests that financial services related content can be spun from the existing financial laws. To regulate the performances of the financial service provider in the financial transaction, make financial services law; at the same time, through the existing financial laws and regulations, such as securities law, banking law, insurance law, enhance the integration, supported by consumer protection laws to construct the legal system on financial services suitable to the financial markets needs to achieve the goals of legal protection of consumer rights.
Keywords/Search Tags:financial consumer, finance services, right protection, asymmetric information, Financial Services Act
PDF Full Text Request
Related items