我國信用卡不公平條款的法律規(guī)制研究
發(fā)布時(shí)間：2018-07-29 06:01
【摘要】：隨著信用卡使用者的增多,在互聯(lián)網(wǎng)時(shí)代對于消費(fèi)者群體而言,現(xiàn)金抑或支票已經(jīng)變成了一種落后的支付手段,消費(fèi)者購買商品或者服務(wù)時(shí)最習(xí)慣的支付方式將不是現(xiàn)金抑或支票等紙質(zhì)化手段而是信用卡等便利化工具。我們也不得不注意到,伴隨著信用卡使用量的增多,信用卡糾紛數(shù)量也日益增多,這些糾紛很多都是與銀行提供的信用卡章程或者領(lǐng)用合約中存在的不公平條款有關(guān)。這導(dǎo)致銀行違規(guī)操作頻發(fā),信用卡訴訟大量增長,所以對信用卡不公平條款從制度上進(jìn)行研究顯得尤為重要。近年來隨著信用卡業(yè)務(wù)的快速發(fā)展,商業(yè)銀行在信用卡業(yè)務(wù)的開展與運(yùn)作中也出現(xiàn)了很多棘手的問題,其中信用卡不公平條款濫用問題不僅損害了信用卡持卡人的權(quán)益,同時(shí)也對發(fā)卡行業(yè)務(wù)健康發(fā)展造成不利影響。持卡人的合法權(quán)利經(jīng)常被發(fā)卡行以信用卡合同不公平條款的方式所剝奪,諸如發(fā)卡行可以任意變更信用卡相關(guān)合約卻不需要持卡人的同意、發(fā)卡行隨意將信用卡冒用風(fēng)險(xiǎn)轉(zhuǎn)嫁給持卡人、持卡人的私人信息屢遭泄露、持卡人不得以對特約商戶的事由向發(fā)卡行主張抗辯等等。在我國,銀行作為信用卡格式合同的制訂者,其運(yùn)用相應(yīng)的獨(dú)占地位和經(jīng)濟(jì)上的優(yōu)勢減輕自己的責(zé)任的動(dòng)機(jī)十分強(qiáng)烈。持卡人基于自身的弱勢地位,只能被動(dòng)接受對其不公的條款,其合法權(quán)益受到嚴(yán)重?fù)p害。然而持卡人作為金融市場的關(guān)鍵要素,其需求支撐著整個(gè)信用市場的發(fā)展,任何市場的發(fā)展都不能以犧牲持卡人的利益為代價(jià),我國的信用卡市場亦是如此。本文重點(diǎn)是對信用卡不公平條款規(guī)制進(jìn)行研究,以期為規(guī)范我國信用卡條款提出有針對性的建設(shè)性建議。本文圍繞信用卡不公平條款中信息披露條款、抗辯切斷條款、冒用風(fēng)險(xiǎn)分配條款、侵犯持卡人隱私權(quán)條款四大條款,從信用卡相關(guān)的概念、法律關(guān)系到我國對信用卡不公平條款的監(jiān)管與法律規(guī)制現(xiàn)狀進(jìn)行剖析,發(fā)掘其中存在的問題與原因,再結(jié)合域外發(fā)達(dá)國家的先進(jìn)規(guī)制經(jīng)驗(yàn),對我國信用卡不公平條款的規(guī)制從指導(dǎo)思想到監(jiān)管制度,法律體系以及具體制度提出一些建議。
[Abstract]:With the increase of credit card users, in the Internet age, cash or checks have become a backward means of payment. The most customary way for consumers to buy goods or services will not be cash or checks, such as credit cards and other facilitation tools. We also have to It is noted that with the increase in the amount of credit card use, the number of credit card disputes is increasing. Many of these disputes are related to the bank's credit card regulations or the unfair terms in the leading contract. This leads to the frequent illegal operation of the banks and the large increase in the credit card litigation, so the unfair terms of the credit card are from the system. In recent years, with the rapid development of credit card business, commercial banks have also appeared many difficult problems in the development and operation of credit card business. The abuse of unfair credit card clauses not only damages the rights and interests of credit card holders, but also causes the healthy development of the card business. The legitimate rights of the cardholder are often deprived by the issuing bank in the way of the unfair terms of the credit card contract, such as the issuing bank can change the credit card related contracts arbitrarily without the consent of the cardholder, and the issuing bank will freely transfer the credit card to the cardholder, the cardholder's personal information is repeatedly leaked, the cardholder is not allowed to do so. In our country, in our country, the bank, as the maker of the credit card format contract, has a strong motivation to reduce its responsibility by using the corresponding exclusive and economic advantages. The cardholder can only accept the unfair terms and its legal rights based on its own weak position. However, as the key element of the financial market, the cardholder's demand supports the development of the whole credit market, and the development of any market can not be at the expense of the interests of the cardholders. The credit card market in China is also the same. This article focuses on the research on the regulation of the unfair terms of the credit card, with a view to the standard. China's credit card terms put forward constructive suggestions. This paper, focusing on the information disclosure clause in the unfair terms of the credit card, the defense cut off the clause, the risk distribution clause, violated the four clauses of the cardholder's privacy terms, from the concept of credit card related, the legal relation to the regulation and law of the unfair terms of the credit card in our country. The current situation of regulation is analyzed, the existing problems and reasons are explored, and the advanced regulation experience of developed countries in foreign countries is combined, and some suggestions are made for the regulation of the unfair terms of the credit card from the guiding ideology to the supervision system, the legal system and the specific system.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D922.28
，
本文編號(hào)：2151757
[Abstract]:With the increase of credit card users, in the Internet age, cash or checks have become a backward means of payment. The most customary way for consumers to buy goods or services will not be cash or checks, such as credit cards and other facilitation tools. We also have to It is noted that with the increase in the amount of credit card use, the number of credit card disputes is increasing. Many of these disputes are related to the bank's credit card regulations or the unfair terms in the leading contract. This leads to the frequent illegal operation of the banks and the large increase in the credit card litigation, so the unfair terms of the credit card are from the system. In recent years, with the rapid development of credit card business, commercial banks have also appeared many difficult problems in the development and operation of credit card business. The abuse of unfair credit card clauses not only damages the rights and interests of credit card holders, but also causes the healthy development of the card business. The legitimate rights of the cardholder are often deprived by the issuing bank in the way of the unfair terms of the credit card contract, such as the issuing bank can change the credit card related contracts arbitrarily without the consent of the cardholder, and the issuing bank will freely transfer the credit card to the cardholder, the cardholder's personal information is repeatedly leaked, the cardholder is not allowed to do so. In our country, in our country, the bank, as the maker of the credit card format contract, has a strong motivation to reduce its responsibility by using the corresponding exclusive and economic advantages. The cardholder can only accept the unfair terms and its legal rights based on its own weak position. However, as the key element of the financial market, the cardholder's demand supports the development of the whole credit market, and the development of any market can not be at the expense of the interests of the cardholders. The credit card market in China is also the same. This article focuses on the research on the regulation of the unfair terms of the credit card, with a view to the standard. China's credit card terms put forward constructive suggestions. This paper, focusing on the information disclosure clause in the unfair terms of the credit card, the defense cut off the clause, the risk distribution clause, violated the four clauses of the cardholder's privacy terms, from the concept of credit card related, the legal relation to the regulation and law of the unfair terms of the credit card in our country. The current situation of regulation is analyzed, the existing problems and reasons are explored, and the advanced regulation experience of developed countries in foreign countries is combined, and some suggestions are made for the regulation of the unfair terms of the credit card from the guiding ideology to the supervision system, the legal system and the specific system.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D922.28
，
本文編號(hào)：2151757
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