再论金融消费者的法律界定

Further Discussion on the Legal Definition of Financial Consumers

金融消费者作为重要的法律术语,已为诸多国家在金融服务法律制度中予以确认,各国在金融服务法制改革进程中,均已将金融消费者保护作为立法的核心理念。与现代金融活动中金融消费者作为泛称已被广泛接受的现实相比,我国现行立法尚未确定金融消费者的基本概念以至于救济途径及实施难以落实。现代金融的背景之下,综合经营的金融实践导致金融消费者在信息和交涉力上与金融服务者的差别日益加大,专业而复杂的金融衍生商品大量推向金融市场,作为交易相对方的金融消费者无法与金融服务者抗衡。应以金融商品交易法律关系为切入点,析解金融服务与金融消费的关系,剖析金融消费的特质,最终将金融消费者这一法律概念作为金融服务法律制度建立的基础予以明确界定。作为金融服务法律制度的逻辑起点,应基于综合经营模式的需求及金融衍生商品交易的特质,摆脱传统消费者概念的理解,摒弃对消费动机和目的的考量,以从事金融商品交易行为这一客观标准进行判定,明晰金融消费者概念的内涵及外延。

A financial consumer, as an important legal nancial services in many countries for many countries. term, has been recognized in the legal systems of fi- Countries, in their financial services legal reform process, have taken the protection of financial consumers as a core concept in legislation. Compared with Modern financial activities in which financial consumers are generally referred to as a widely accepted notion, current legislation in China has not established the basic concepts of financial consumer, so that relief method and implementation are difficult to implement. Against the background of modem finance, financial practice of the comprehensive management led to the increasing differences in information and bargaining power between consumers and the financial service providers, and when a large number of professional complex financial de- rivative instruments flow into the financial markets, financial consumers, as trading counterparts, cannot com- pete with financial service providers. We should take the financial commodity trading legal relationship as the breakthrough point, make analysis of the relations between financial services and consumer finance, and the characteristics of financial consumption, and ultimately the financial consumer, a legal concept, will be clear- ly defined as the basis of building the legal system of financial services. As the logical starting point for the le- gal system of financial services, based on the needs of the integrated nature of the business model and the fea- tures of financial commodity derivatives trading, we should get rid of the traditional understanding of the con- cept of consumers, abandon ment in financial commodity the consideration of consumer motivation and purpose, judge according to engage- trading behavior, the objective standard, and finally the connotation and denota- tion of the concept - a financial consumer, becomes clear.