Research On The Legal System Of Financial Consumers' Protection In Our Country

The rapid development of the financial market have made the financial consumers, the emerging civil subjects, gradually formed and developed in our country. But with the deepening of financial innovation, the infringement problem in financial field is increasingly serious. The protection of financial consumer's rights has attracted more and more attention. The western developed capitalist countries realize comprehensive protection of financial consumers through special legislation. In 2013, the new revised “consumer rights and interests protects law” of our country cleared the consumers' right to know in financial field. It's of great theoretical and practical significance. Nevertheless, it still exists many problems in the application. This article discusses the financial consumers' rights and interests protection in China from two aspects of theory and practice, so as to put forward constructive views on this question. Text is divided into four parts, and the main contents are as follows:The first part is the theory of financial consumers' protection. There is no concept of financial consumer in the legislation in our country. The author puts forward the concept of financial consumer based on the intrinsic value of the financial consumer protection, that is, people who accept financial institutions providing financial products or financial services, it is not limited to natural person, but not including specialized investment institutions and the natural persons, legal persons or other organizations who meet certain financial resources, professional ability and risk bearing capacity. The special protection for financial consumers is because that in the process of financial transactions, financial consumers and financial institutions have huge differences in access to information to make financial consumers at a disadvantage position, resulting in the subjects' status inequality in essence. At the same time, by widespread using format terms in trading, financial institutions utilize the rights of formulating and interpretation the contracts to transfer financial risks. In addition, the comprehensive protection of the financial consumers is the important content and requirement to guard against and defuse financial risks.The second part is the present situation and evaluation of financial consumers' protection in China. At present, the protection to financial consumers is mainly from the perspective of supervised respectively, lack of specialized comprehensive legislation in our country. The correlation legal systems disperse in the “securities law”, “insurance law” and “commercial bank law” and other rules and regulations formulated by “one bank and three commissions”. But the rules and regulations is principled and the effectiveness level is low, so that the applicability of laws is difficult to unify, easily to form legal loopholes and regulatory gaps. Although the “consumer rights and interests protects law” article 28 clears the consumers' right to know in financial field, the law application to financial consumers is very limited, because it limits consumers within the scope of “cost of living”. Starting from the traditional civil law theory, based on the existing civil law protection mechanism in our country, the financial consumers can exercise its right to claim from the following several aspects: because of error or fraud to exercise cancellation right; contracting negligence liability; financial institutions mis-selling violate the fair trading right; the trustee violates the duty of a good faith and shall bear the liability for damages. However, the traditional civil law theory is only emphasizes equality in form. It's difficult to achieve sloping protection to financial consumers. In addition, there is no financial consumers special protection agency. And in the process of judicial relief, because of case filing difficulty, the high cost of lawsuit and the long litigation cycle, it is hard to safeguard legal rights by litigation for financial consumers.The third part is the comparison of financial consumers' protection legislation. Mainly introduces the United Kingdom, the United States, Japan and Taiwan advanced experience of financial consumers' protection, it has certain reference significance to the design of China's mainland financial consumers' protection system.The fourth part is the construction of financial consumers' protection system in our country. First, we should consummate the relevant legislation. At present, we can modify the “consumer rights and interests protects law” to bring the financial consumers into the consumers, supplemented by the other department laws to achieve the protection of financial consumers. For the time is right, it still should formulate special financial consumers protection law. At the same time, it should highlight the financial consumers' position when we enact the civil code of our country. Second, we need to improve our country's financial regulatory system, transform the institutional supervision to functional supervision, establish a financial consume protection agency, and strengthen the industry association's effect. Finally, we need to perfect the financial consumption dispute solution mechanism, advocate solution disputes within financial institutions, improve the financial consumer disputes arbitration mechanism, ameliorate litigation settlement mechanism, break through the traditional principles of distribution of evidential burden, found small lawsuit and representative litigation of financial consumption.