金融法律调整的私法转向与理论建构

Private Law Turning and Theoretical Construction of Financial Law Adjustment

传统意义上,金融法呈现单一公法调整结构。伴随各国金融当局的"监管失灵",金融法调整出现新趋势,即金融商品交易不仅受到强制性、惩戒性调整,金融法还应内含激励因素。缔约过失责任、违约责任、侵权责任和信义义务等私法制度被适用于金融领域,逐渐形成特定性的金融私法制度。但为满足金融消费时代需要,金融法律调整需要经历从分散到统合的私法构造过程。

In the traditional sense,the financial law exhibits the structure of single public law adjustment. With the 'regulatory failure'of financial authorities in various countries,there appears a new trend since financial commodity trading is subject to mandatory and disciplinary adjustment,and financial law is supposed to contain incentive factors. Culpa in contrahendo,liability for breach of contract,tort liability and fiduciary duty of private law system has been applied to the financial sector,and gradually formed a specific financial private law system. However,in order to meet the needs in the era of financial consumption,the adjustment of financial law has to go through the construction process of the private law from separation to integration.