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Private Law Regulation Of Contracting Demonstrative Obligations Of Financial Services

Posted on:2017-05-10Degree:MasterType:Thesis
Country:ChinaCandidate:Z FengFull Text:PDF
GTID:2296330503459237Subject:Law
Abstract/Summary:PDF Full Text Request
Financial commodity trading belongs to private law behavior, thus should follow the basic principle of private law autonomy. But the premise of private law autonomy is that both parties should stay in the equal status. Compared with the general commodity consumption, the financial commodity trading possesses the characteristics of invisible, highly professional and information asymmetry, while the ordinary consumers do not have the ability to study and analyze the structure of the product and to discover the hidden risks, which needs impose a Strict obligation of explanation for financial services. So, it is essencial to explain “important information” relating to the contracting in a reasonable way to financial consumer, in order to ensure the financial consumers to make rational judgment on financial goods and to make correct choices according to their real willing. Due to late development of Chinese financial services market, there is not a unified legal norms for the financial services contracting obligation. Relevant supervision and penalty terms only regulate in the "One industry and three association" and the new " Consumer Protection Act ". Although the new " Consumer Protection Act " involving the demonstrative obligation but it is too abstract, the expression of contracting can’t fit the particularity of financial services. This leads to the phenomenon of financial services inflating profits and hiding risk frequently. But consumers have no way to protect their civil rights.This paper will introduce the problem of financial services contracting demonstrative obligations in three parties.Chapter one mainly discusses the fundamental content of the topics. Since there are no relevant legislations, the contracting demonstrative obligations are often mixed with "information disclosure obligation". The disclosure duty emphasize its administrative responsibility and criminal responsibility; and "contracting explanation duty" focuses on the private protection of consumers, and it requires higher perform standard. In order to fully protect the market attribute of financial market, as far as possible to avoid the waste of resources, this paper argues that the explanation obligation should be limited in the "important matters". The next section will suggest to combine the explanation duty with the principle of "appropriate", to set three level for the seller to choose for correct cusumers.The second chapter mainly discusses the construction of the topic. Firstly, it analyzes the concept of financial consumers and its development, holding that financial consumers should include particular legal person and institution investors. Secondly, this thesis argues that before legalized, the one who do not full fill the obligation, could be punished based on Liability for Contracting Fault、general tort liabilities and punitive damages responsibility in the " Consumer Protection Act ". Thirdly, it is necessary to develop a unique regulation for the financial consumer protection. At the same time, financial consumers bear the heavy burden of evidential burden. The thesis claim to make full use of the principle of "reversed burden of proof. " and "non-fault responsibility".In the third chapter, analyzing the topics on the macro-perspective, China’s has enter the multioperation era. There exists large amount of mixed Financial products. But the market is still controlled by " Separate Supervision System " and "institutional supervision system ", its lack of systematic and coordination lead to the serious problem of supervision loopholes, can not adapt to the trend of financial environment. In this article, the writer claim that we can try "unified supervision" model, awarding an institution to a certain authority to lead the coordination of various financial regulatory agencies. From a horizontal perspective, we can use the “functional regulatory model”, to supervise the market on the property of the commodity itself, rather than the financial institutions themselves.Through the research, this paper draws the following conclusion: The topics are the core obligations which concern customers’ vital interests. Macroscopic supervision and microcosmic legislation should be combined and a systematic and comprehensive private security system should be built to achieve buyer-responsibility based on sell-responsibility.
Keywords/Search Tags:contracting explanation of financial service problems, private law, The financial consumers, Financial mixed management
PDF Full Text Request
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