从市场风险防范浅论如何完善信用卡立法

发布时间：2018-03-05 00:06

本文选题：信用卡　切入点：法律问题　出处：《南昌大学》2013年硕士论文　论文类型：学位论文

【摘要】：随着市场经济的发展,信用卡成为社会金融行业发展的新兴产物。目前,信用卡已经成为社会主要支付方式,而用以规范信用卡业务的法律法规却只是散见于《民法通则》、《消费者权益保护法》、《商业银行法》、《合同法》等法律当中,而且司法实践中,对于信用卡业务仅仅能够借鉴一些原则性规定进行评价。1999年中国人民银行出台了《银行卡业务管理办法》,至今已逾十五年,无法适应信用卡业务的快速发展。因此,有关信用卡的立法亟待完善。本文通过对当前信用卡业务的发展历程进行回顾,依据信用卡业务中包含的相关主体的特点、法律关系,以及当前我国信用卡立法现状进行分析,就目前信用卡业务中银行霸王条款、个人信息保护以及其他风险等问题进行分析探讨,从而提出对我国信用卡法律制度的相关完善建议。本文先对信用卡的来源进行阐述,明确信用卡的涵义,并对信用卡的分类进行论述。然后以美国为例,论述信用卡的立法原理和立法趋势,通过研究美国信用卡的立法,借以给我国立法带来启示。然后对我国信用卡的法律关系进行分析,主要集中在发卡行与持卡人、发卡行与特约商户以及持卡人与特约商户之间的相互法律关系上。其后,本文对我国信用卡几个法律问题进行探讨,首先从信用卡协议以及授信上进行分析。信用卡协议中存在诸多霸王条款,收费、计息也存在侵害消费者权益的情况,同时高额授信和重复授信也凸显出行业矛盾导致的风险。同时,本文还对银行发卡风险做了探讨,结合了在信用卡市场运行中的代表性的案例,对银行如何规避发卡风险以及在发卡中所需要承担的注意义务进行了分析。最后,对银商之争表现出的市场缺乏监管、立法体制落后等问题进行了探讨。最后,本文对信用卡风险管理和征信体系分别提出立法建议,分别从建立事前、事后监督预测的法律制度,完善征信体系,强化征信立法以及建立完整的征信数据库等方面提出如何完善我国信用卡立法。
[Abstract]:With the development of market economy, credit card has become a new product of the development of social financial industry. At present, credit card has become the main payment method in society. However, the laws and regulations used to regulate the business of credit cards are scattered in the laws of "General principles of Civil Law", "Consumer Rights and interests Protection Law", "Commercial Bank Law", "contract Law", and in judicial practice. Credit card business can only be evaluated by some rules of principle. In 1999, the people's Bank of China issued the "Banking Card Business Management measures", which has been more than 15 years, and can not adapt to the rapid development of credit card business. The legislation on credit card needs to be improved. This paper reviews the development of credit card business, according to the characteristics of the relevant subjects included in the credit card business, legal relations, as well as the current status of credit card legislation in China. This paper analyzes and probes into the bank overlord clause, personal information protection and other risks in credit card business at present, and puts forward some suggestions on how to perfect the credit card legal system of our country. In this paper, the origin of the credit card, the meaning of the credit card, and the classification of the credit card are discussed. Then, taking the United States as an example, the legislative principle and the legislative trend of the credit card are discussed, and the legislation of the credit card in the United States is studied. Then the author analyzes the legal relationship between credit card issuers and cardholders, card issuing banks and special merchants, and the mutual legal relations between cardholders and special merchants. Then, this paper discusses several legal problems of credit card in our country. First of all, it analyzes the credit card agreement and credit. There are a lot of overbearing clauses in credit card agreement, and the situation of infringing consumers' rights and interests is also existed in the credit card agreement. At the same time, high credit and repeated credit also highlight the risks caused by industry contradictions. At the same time, this paper also discusses the risk of bank card issuance, combining the typical cases in the operation of credit card market. This paper analyzes on how banks avoid the risk of issuing cards and the duty of attention they need to undertake in issuing cards. Finally, the paper discusses the market lack of supervision and the backward legislative system in the competition between banks and merchants. Finally, this paper puts forward legislative suggestions on credit card risk management and credit system, respectively, from establishing the legal system of supervision and prediction in advance and afterwards, perfecting the credit system. How to perfect the credit card legislation is put forward in the aspects of strengthening credit information legislation and establishing complete credit information database.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.28

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