| Driven by financial technologies,the value of new products,services and even organizations in improving financial transaction efficiency and availability has been recognized by the society.Indeed,the evolution of the financial ecosystem also requires regulators to adjust their thinking in time to meet the challenges brought by the innovation of new products,services and even organizations.Countries around the world are actively promoting various industrial policies and legal rules in order to strike a balance between protecting innovation and controlling risks.The financial technology has also developed rapidly in China and achieved remarkable results.As early as 1999,third-party payment institutions first appeared in China,but at that time,the application scope of third-party payment was limited,and the scene closed loop was not formed,so it did not attract the special attention of regulators.Since Alibaba’s "Alipay" launched in 2004,the third party payment industry has achieved rapid change.After the People’s Bank of China issued the guidelines for electronic payment(No.1)in 2005,there has been heated discussion on how to legalize and standardize the development of thirdparty payment.In June 2010,the central bank promulgated the measures for the administration of payment services of non-financial institutions,and the legalization of third-party payment business has entered a fast lane.The launch of third-party payment license can be regarded as a milestone for science and technology enterprises to formally "enter the house" when engaging in financial business.With further integration and development of technology and finance,such enterprises engaged in the standardized development of financial business with the help of scientific and technological means are still facing such problems as illegal financial activities,liquidity risk,information monopoly,unfair competition etc.Equal treatment of financial activities and the same supervision of similar businesses are the basic principles of the regulatory authorities for science and technology driven financial innovation.Traditionally,China’s financial regulatory framework is based on separate regulatory framework.Mainly according to the commercial bank law,securities law,insurance law,trust law and other laws and their supporting administrative laws and departmental rules,in practice,the regulatory model of "licensed operation" is adopted according to the types of banking,securities and insurance institutions.Because the enterprises engaged in financial business with scientific and technological means,commonly known as "financial technology companies",gave birth to the "node" financial model and "gatekeeper" monopoly,which led to the change of trust mechanism,traditional risk measurement methods and the systematic risk based on scientific and technological innovation failed.However,due to the lack of inclusiveness of the traditional regulatory framework for scientific and technological innovation.This is mainly reflected in the insufficient inclusiveness of the existing regulatory framework for innovation,which makes it difficult for innovation activities to be included in the regulatory framework with institutions as the main focus.Meanwhile,the business led regulatory framework is difficult to balance the tension between innovation and security.Finally,there are a series of such phenomena as regulatory arbitrage due to the lack of the corresponding laws and regulatory institutions to supervise it.It is precisely based on this that the academic circles have been constantly criticizing the existing regulatory framework.It is worth noting that the premise of bringing a business into the financial regulatory framework is to judge whether a business belongs to financial technology,which mainly includes two elements: First,whether this business activity is based on the application of big data,blockchain,biometric and other technologies.Second,whether the products or services supported by this technology are involved in the business processes of traditional finance,such as customer acquisition,risk control,payment and settlement,clearing and so on.The previous problems like regulatory arbitrage are largely due to the insufficient understanding of the financial attributes of the innovative business activities of fintech companies.Theoretical research and regulatory authorities around the globe have gradually reached a consensus that financial supervision should be result-oriented.They should pay full attention to the basic functions of financial activities rather than the name.Its core essence lies in the effect and pertinence of supervision,which aims to effectively control the "negative externality" of financial activities,which is the so-called functional supervision.In fact,through the investigation of its institutional function,it is not difficult to find that "the same supervision for similar businesses" is actually an expression of the concept of functional supervision in the practice of supervision.This requires regulators to take an inclusive attitude and incorporate innovation activities into regulation on the basis of accurately identifying the financial attributes of innovation business activities of fintech companies.Therefore,in the regulatory practice of fintech companies,we should introduce a new model "experimental regulation" that can tolerate fault and be compatible with efficiency and safety.When we study and construct the legal supervision mechanism of fintech companies,we should follow the principles of "technology neutrality" and "functional supervision",analyze the evolution path and business model of the financial services,models and even organizations created in the practical scene,and deconstruct the concrete embodiment of the "entropy" of the financial operation mode driven by science and technology,so as to put forward the improvement suggestions based on the implementation dilemma according to its characteristics.In addition to the introduction and conclusion,this paper is divided into six chapters,and its main contents are as follows:The first part analyzes the theoretical basis of legal supervision of fintech companies.Based on the introduction’s review of domestic and foreign research,this paper combs out the transformation trend of "technology driven supervision" in response to the regulatory challenges brought by the development of fintech companies.Its practical driving lies in three aspects: First,technological innovation.This mainly includes two dimensions: the rapid development of science and technology requires the timely updating of regulatory theory;technological innovation provides technical support for regulatory optimization.Second,standardize practice.The relevant regulatory rules on financial holding companies and online credit are not only the normative basis for the reconstruction of the regulatory framework for fintech companies,but also important materials for observing the logic of relevant institutional changes and power allocation mechanism.Third,experimental regulation.In the Chinese context,"first trial" is its main practice,which provides methodological guidance and practical material reference for the legal supervision of fintech companies.The transformation of the theoretical paradigm of "science and technology driven regulation" has a profound social background.With the help of this theoretical tool and the metaphor of "regulatory inclusion",the research of the full text will explore how to realize the scientific and technological upgrading of the traditional framework through technical means in the realistic picture of the operation of fintech companies,and bring innovation activities into the regulatory framework.The second part investigates the object category of legal supervision of fintech companies.This part uses the genetic interpretation method to analyze the reasons for the rise of fintech companies.The financing difficulties of small and micro entities and the financial scene of science and technology empowerment are the main reasons.Through the investigation of the actual operation of fintech companies,it is concluded that their actual financial business is mainly based on the third-party payment.After gradually forming the scene closed loop,they use credit technology and other technical means to realize process management and asset allocation.In fact,the deep integration of technology and finance has led to the "entropy" of the financial operation mode,which is mainly reflected in the "node" operation and the "gatekeeper" monopoly.The basis for effective supervision of these innovative businesses,services and even organizations are fully understood the manifestation of "entropy".This paper defines financial technology companies as enterprises engaged in financial technology business with advanced technical means such as Internet of things,biometric technology,cryptography,artificial intelligence and big data.A clear understanding of the financial essence of fintech companies is the basis for accurately analyzing their innovative products,services and even organizations.It is also the basis for discussing the problems caused by their lack of regulatory arbitrage and data governance mechanism.This is also the logical starting point for the optimization of legal supervision system and mechanism of fintech companies.The third part investigates the realistic picture of the legal supervision of fintech companies.The purpose of investigating and studying the regulatory evolution of the main business types of fintech companies and the practical scheme is to summarize the characteristics of the existing regulatory framework and optimize it on the basis.Through the research of this chapter,it is found that the existing regulatory framework mainly adopts a regulatory model with institutional supervision as the main starting point and business supervision as the main guidance.This supervision mode is rooted in the current separate supervision framework: the institutional supervision is mainly based on the type of innovative enterprises to set special counterpart supervision institutions,and institutional supervision is implement by setting market access conditions by categories.The business supervision is also different from the supervision mode of FCA in the UK.It is mainly based on institutional supervision,and the corresponding regulators supervise the daily business behavior of the supervised objects.Generally speaking,the current legal supervision of fintech companies has the characteristics of both inducement and compulsion,central and local supervision game,nodalization of business license,experimental regulation,implementation of preventive supervision,sports governance and so on.It is particularly noteworthy that only by introducing the "experimental regulation" model and relying on its unique "fault-tolerant mechanism",can the tension between financial innovation and financial security be eased.Industry specific governance is the application of the "sports governance" model in special regulatory fields.Its function is mainly to make up for the lack of penetration of existing behavior supervision through sports departmental coordination.The fourth part analyzes the risk changes brought by fintech companies and the implementation difficulties of legal supervision.The "entropy" of financial operation mode and unique risk characteristics brought by the of fintech companies are the logical basis for discussing their regulatory dilemma.Facing the challenges brought by the innovation of fintech companies,the existing regulatory framework is weak.This is mainly because the existing regulatory framework is not inclusive of innovation at the conceptual level,resulting in the embarrassing situation that innovation is difficult to be included in regulation at the institutional level.At the mechanism level,there are naturally some problems,such as unclear regulatory subject,chaotic boundary mode,urgent improvement of regulatory technology application mechanism,and urgent construction of "experimental regulation".The fifth part makes a comparative analysis of the regulatory framework of foreign fintech companies.Taking the models of the United Kingdom and the United States as the main analysis objects,by comparing the differences and similarity between them,this paper provides reference for the innovation of the legal supervision mechanism of fintech companies in China,so as to improve the performance of the supervision framework.The sixth part is the innovation of the legal supervision system of fintech companies.Based on the basic elements of the theoretical paradigm of "science and technology driven regulation",the basic principles are "taking finance as the guideline and technology as the core",and grasp the aspects of technology neutrality,bottom line control,functional supervision,collaborative governance and so on.Special market access and compliance governance mechanisms should be set up for fintech companies,which is not only the embrace of supervision and fintech companies under the concept of regulatory inclusiveness,but also a relatively low-cost rational choice to bring fintech companies into the regulatory framework.The construction of node technology driven regulatory framework is not only the tentacle of regulatory intervention platform technology companies,but also the entry point of regulatory means.In addition,the construction of information governance mechanism in response to the "gatekeeper" monopoly is due to the construction of node regulatory framework,so that regulation can cut into innovative services,products and organizations.Then,the data governance mechanism realized by means of technology driven and cooperative supervision is not only a practical approach to crack the "gatekeeper" monopoly,but also an advanced measure to solve the regulatory problems in essence.In addition,constructing "experimental regulation" under the existing regulatory framework,will give play to its fault-tolerant mechanism compatible with innovation and safety,and promote the improvement and development of the regulatory framework of China’s fintech companies. |
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