单用途预付卡金融异化、裁判反思与展望——基于139份案例的实证分析

Single-purpose Prepaid Card Financializing, Judicial Reflection and Prospect——Empirical Analysis Based on 139 Cases

预付卡虽有天然类金融工具构造,但我国因"去金融化"的政策限制无法发行金融预付卡。以此为背景注释,单用途预付卡作为"金融冲动"的突破口,正经历从纯粹的营销手段到属性金融异化的嬗变。金融异化易诱发发卡人机会主义与道德风险,致涉单用途预付卡案件增多、案因结构改变,呈现金融消费特征。反观以司法为处理中枢的循环反馈系统中,金融异化致案件事实输入已改变,然司法观念仍停留无前、裁判路径形成民事思维定式、专项立法力所不逮,酿成正反馈的恶性循环。有鉴于此,应对涉单用途预付卡案件的裁判观念与思路"先破后立",围绕"金融消费者保护"和"债权神圣"理念展开裁判脉络,注重安全也要拥抱金融创新与科技发展。此外,外部的立法刺激亦应跟进,尽快制定《金融消费者权益保护法》和专项的地方性法规,兼顾功能监管和行为监管。最后,应追求社会治理和良性司法的互相促进、相得益彰抵达"善治"。

Although the prepaid card has the mechanism of natural financial instruments, the financial prepaid card cannot be issued because of the ＂de-financialization＂ policy in China. Based on this, the number of cases involving single-purpose prepaid cards increased and the structure changed in the past few years. The single-purpose prepaid card is experiencing the evolution from pure marketing mean to financial instrument, which is apt to induce the opportunism and moral hazard. However, the judicial concept of the single-purpose prepaid card still stays in the past, the civil thinking pattern has already formed by judgment process, leading to a vicious circle. In view of this,judges should realize the financial characteristic of single-purpose prepaid cards and build up the concept of ＂financial consumer protection＂ and ＂sanctity of creditor′s rights＂. Besides,the financial innovation and technological development are as important as financial safety. In addition, formulate ＂the Financial Consumer Protection Law＂ and special local regulations should be formulated as soon as possible with both considerations of functional supervision and behavior supervision. Lastly, we should pursue the mutual promotion of social governance and benign judicature,complementing each other and realize ＂good governance＂.