金融消費者保護法的立法邏輯及規範表達

On the Legislative Logic and Normative Expression of Financial Consumer Protection Law

受到公私法二元區分理論的影響；傳統金融法理論往往將金融法區分為金融監管法與金融交易法兩種法律規範。在金融監管法力有不逮的背景下；通過金融私法轉向實現監管目標的立法趨勢日益明顯；而其中最為關鍵的步驟；就是在金融法領域引入民事責任等私法規制工具；以彌補金融公法的監管不足。金融監管具有雙重目標：一是防範系統性金融風險；二是保護金融消費者權益。為此；需要將目標監管、行為監管和持續監管理念融入金融消費者保護法的具體構造。對於《民法典》等法律法規已作出詳盡規範的制度；金融消費者保護法不宜再作規定；如借款合同、保證合同。對於僅具有特別法意義的制度；金融消費者保護法亦不宜規定；如存款保險制度。當前；金融消費者保護法的階段性建構主要包括確立金融消費者概念、擴張金融消費者冷靜期的適用範圍、統合金融機構的適當性義務及確立金融消費者“償還能力規則”。

In traditional financial law theory, influenced by the theory of dual distinction between public and private law, legislators often regard financial regulatory law and financial transaction law as two legal norms. It is the most crucial aspect of the transition to private financial law that the introduction of civil liability mechanisms in the field of financial law. Relevant private law regulations can also be introduced to a certain extent into the field of financial law to compensate for the lack of financial supervision, improving the financial legal system, and ensure the safety of financial consumption. In terms of financial regulation, the Twin Peaks theory proposes two goals,namely, prudential regulation in order to prevent the occurrence of systemic financial risks at the root and to protect the rights of financial consumers and safeguard their legitimate rights and interests as much as possible. Therefore, it is necessary to integrate regulatory objectives into the specific structure of the financial consumer protection law, including target regulation, behavioral regulation, and continuous regulation. The Financial Consumer Protection Law Should not consider the systems that have been fully regulated by laws and regulations such as the Civil Code, such as loan contracts and guarantee contracts. The financial consumer protection law is also not suitable for systems that only have the meaning of specialist, such as the deposit insurance system. At present, the phased construction of the Financial Consumer Protection Law mainly includes establishing the concept of financial consumers, the obligation to expand the calm period of financial institutions, the obligation to regulate the appropriateness of financial institutions in a unified manner, and establishing the“solvency rules”for financial consumers.