第三方支付法律风险的监管现状与问题研究

Study on the Supervision Status Quo and Problems of the Legal Risks from the Third-party Payment

自2010年开始,人民银行等部门推出了关于第三方支付的一系列管理办法,已初步形成了"外部监管+行业自律"的监管架构。这一系列法规和部门规章有效地弥补了我国第三方支付法律监管方面的空白,确立了第三方支付行业规范发展的法律框架,解决了部分法律风险,但是在机构属性、业务定位、沉淀资金利用和利息归属等方面仍存在较大的问题与争议。为此,应注重实行功能监管、协同监管和分类监管,出台针对第三方支付的高位阶法律,在原有相关法律中增加关于第三方支付的适用条款,并在鼓励创新和控制风险中取得平衡。

Since 2010, People＇s Bank of China has issued a series of regulations for the management of the thirdparty payment, and a regulatory framework with external supervision and industry self-discipline has been formed. With the enactment of these regulations and rules, the legal regulatory gap on the third-party payment has been effectively made up for, the legal framework for the development of third-party payment industry has been established, and part of the legal risks have been solved, but there are still some arguments in the nature of third-party payment platform, business scope, utilization and the interest of belonging of precipitation funds. Therefore, China＇s government and financial supervision department need to implement the functional regulation, classified and cooperative supervision, promulgate high rates of laws about the third-party payment, increase applicable provisions for third-party payment to the existing laws, and get a balance between encouraging innovation and risk control.