金融消费者保护基本问题研究

The Research on Basic Issues of Financial Consumer Protection

本文对金融消费者概念的内涵和外延、保护体制、保护原则等进行了探讨。金融消费者,是指除金融业经营者以外的购买金融产品和服务的所有人。依据金融消费者在交易过程中与经营者相比所处的地位,可以将其分为三个层次,针对不同层次金融消费者应提供不同程度的法律保护。这是金融消费者保护的核心问题。金融消费者保护体制包含规则构建(民事、行政、刑事规则;强制性、自愿性规则)和机构设置(嵌入式和独立式)两个层面。金融消费者保护原则包括:统一保护与分业保护相结合;全面保护与重点保护相结合;倾斜保护与平等保护相结合;程序性保护与实体性保护相结合;事前预防、事中监测与事后救济相结合;法律特别保护与市场主体自我责任相结合。

This essay is about the concept of financial consumer, the system of consumer financial protection and the principles of consumer financial protection. Financial consumers are people who buy the financial products or accept financial services, except those who sell the financial products or provide the financial services. Considering the different circumstances faced by the financial consumers when dealing with financial institutions, we can classify financial consumers into three types. The financial consumer protection law should be formulated according to the attribution of different types of financial consumers. This is the core of financial consumer protection. The system of protection includes two important issues. The first is the development of rules, the framework of rules should consist of three parts： civil rules, administrative rules, and criminal rules. In addition, it should be the combination of mandatory rules and voluntary rules. As to the administrative bureau of financial consumer protection, there are two models to be chosen. One is embedded model, which means the bureau is located in the financial supervision bureau which has been set up before. The other is independent model, which means the bureau is out of the financial supervision bureau which has been set up before or relatively independent. There are six principles of protection： the combination of integrated protection and distinguished protection; the combination of general protection and special protection; the combination of extra protection and equal protection; the combination of procedural protection and substantive protection; the combination of advanced preventing, persistent monitoring and subsequent remedy; the combination of legal protection and self-responsibility.