論信用卡合同的法律規(guī)制
發(fā)布時間：2018-07-30 06:35
【摘要】： 信用卡，作為一種發(fā)卡機(jī)構(gòu)向持卡人提供信用的信貸工具，最早產(chǎn)生于美國。由于信用卡具有攜帶方便、轉(zhuǎn)帳消費功能齊全、安全快捷等優(yōu)點，使其迅速在世界各地得以蓬勃發(fā)展，并已成為人們普遍采用的小額電子資金劃撥工具和信貸工具。隨著信用卡業(yè)務(wù)的飛速發(fā)展，信用卡業(yè)已成為社會生活中交易消費活動不可或缺的重要媒介，但相應(yīng)地，信用卡支付體系中固有的缺陷也逐步暴露出來，而各國往往通過立法的方式對信用卡存在的相關(guān)問題進(jìn)行規(guī)制。 具體就信用卡在我國的發(fā)展情況而言，近二十年來，在國際經(jīng)濟(jì)的大方向下，我國各專業(yè)銀行為順應(yīng)市場經(jīng)濟(jì)中的購物消費、轉(zhuǎn)帳結(jié)算等需要，也紛紛向社會提供了信用卡這一金融產(chǎn)品，，雖說信用卡產(chǎn)業(yè)在我國的發(fā)展勢頭喜人，但由于起步較晚，與發(fā)達(dá)國家相比，我國的信用卡業(yè)務(wù)在技術(shù)水平、市場培育、法制保障等方面都不甚成熟，單以對其的法律規(guī)制而言，就存在嚴(yán)重的立法缺失，到目前為止我國還沒有關(guān)于信用卡的專門立法，唯一完全針對信用卡的立法是中國人民銀行于1999年頒布的《銀行卡業(yè)務(wù)管理辦法》，其余的則散見于最高人民法院、最高人民檢察院的幾個司法解釋和財政部的暫行規(guī)定中，欠缺一個相對完整的立法體制。對信用卡這一存在強(qiáng)大潛在風(fēng)險的體系來說，立法的缺失會產(chǎn)生一系列始料不及的弊端，如發(fā)卡行和持卡人的權(quán)利義務(wù)得不到清楚的界定，使持卡人往往被發(fā)卡行的格式合同所限，處于弱勢地位；再如對于信用卡當(dāng)事人的民事責(zé)任沒有明確規(guī)定，也必然導(dǎo)致糾紛的大量存在。由此可見，對信用卡進(jìn)行法律規(guī)制尤其是民法規(guī)制是十分必要的。 筆者認(rèn)為，雖然信用卡涉及的法律問題很多，但信用卡合同卻是其中最為關(guān)鍵的因素，只要能對信用卡合同進(jìn)行系統(tǒng)全面的保障和規(guī)制，就必然能為當(dāng)事人的行為設(shè)置一個限定標(biāo)準(zhǔn)，有效預(yù)防信用卡違法行為的發(fā)生，減少信用卡糾紛；同時在信用卡當(dāng)事人之間建立起一個最佳的利益平衡點，充分維護(hù)各方的經(jīng)濟(jì)利益，真正實現(xiàn)效率與公平的兼顧。為此，對信用卡合同的研究也就顯得必然和必要了。本文就將以實現(xiàn)對信用卡合同的有效法律規(guī)制為目的，試圖將信用卡合同與一般的貨幣融通合同和提供服務(wù)合同區(qū)別開來，從信用卡合同的基本組成入手，對信用卡合同從基本情況概述、信用卡合同中的合同權(quán)利、合同義務(wù)以及合同責(zé)任四個方面來展開論述。 首先來看對信用卡合同的概述部分，這一部分是作為全文的一個導(dǎo)入，對信用卡合同中的一些基本情況做出大致的交代。就討論對象而言，本文所指的信用卡是指嚴(yán)格意義上的信用卡，即主要由銀行發(fā)放，持卡人無須預(yù)先存款即可消費借貸的“貸記卡”。在明確這一點后，筆者以信用卡法律關(guān)系的主體為立足點，將一系列復(fù)雜的信用卡合同涉及的基本主體界定為發(fā)卡行、持卡人、特約商戶三方，并將三方當(dāng)事人信用卡合同作為本文的研究重點；在對信用卡合同的法律性質(zhì)分析中，將發(fā)卡行與持卡人間的合同性質(zhì)定位為以授信為基礎(chǔ)的混合契約，而發(fā)卡行與特約商戶間的合同筆者則傾向于獨立擔(dān)保說，持卡人與特約商戶間的合同性質(zhì)因具體情況不同而不同，作為信用卡從合同的保證合同具有最高額保證的性質(zhì)……最后得出結(jié)論，將信用卡合同歸納為一種具有關(guān)聯(lián)信用聯(lián)系的特殊法律關(guān)系，從而確立了全文的研究基準(zhǔn)。 其次就進(jìn)入了對信用卡合同的權(quán)利與義務(wù)的介紹。這部分內(nèi)容契合了本文的主旨，是必不可少的。在信用卡合同權(quán)利部分，將權(quán)利分為一般權(quán)利與特殊權(quán)利來進(jìn)行討論，并將重點放在了對持卡人特殊權(quán)利的設(shè)置上。一般權(quán)利是從發(fā)卡行、持卡人、特約商戶以及保證人各自所應(yīng)享有的權(quán)利來進(jìn)行分析的，比如發(fā)卡行有權(quán)停止某持卡人使用信用卡等等；對于特殊權(quán)利，則是從保護(hù)持卡人的利益出發(fā)，提出持卡人應(yīng)享有條件變更知情權(quán)和抗辯權(quán)，從而平衡持卡人與發(fā)卡行之間不平等的利益關(guān)系。至于信用卡合同的義務(wù)部分，由于在雙務(wù)合同中，權(quán)利義務(wù)呈現(xiàn)出對應(yīng)性，因此對信用卡合同的義務(wù)進(jìn)行的是與權(quán)利主體相對應(yīng)的論述，并為下文的信用卡合同責(zé)任部分做好鋪墊。 信用卡合同責(zé)任部分是本文的重點。信用卡法律關(guān)系中可能會產(chǎn)生民事責(zé)任、行政責(zé)任甚至是刑事責(zé)任。但顯然民事責(zé)任更偏重維護(hù)利益而不是處罰，體現(xiàn)了民法的精神原則。信用卡民事責(zé)任又可進(jìn)一步劃分為合同責(zé)任和非合同責(zé)任，非合同責(zé)任主要指締約過失責(zé)任與侵權(quán)責(zé)任，而合同責(zé)任則包括了違約責(zé)任和保證責(zé)任，本文將著眼點放在對信用卡合同責(zé)任的分析上。在違約責(zé)任部分，將信用卡實踐中遇到的違約責(zé)任主要分為信用卡透支時所產(chǎn)生的民事責(zé)任和信用卡掛失止付的民事責(zé)任，并按照不同的主體、不同的時間點加以區(qū)分，詳細(xì)地進(jìn)行論述；在保證責(zé)任方面，對信用卡保證人所應(yīng)承擔(dān)的保證責(zé)任從責(zé)任范圍、責(zé)任承擔(dān)期限以及抗辯事由三個方面逐一分析，加深了對信用卡合同體系中居于從屬地位的保證合同的理解和認(rèn)識。 在文章最后，筆者提出了對信用卡合同進(jìn)行法律規(guī)制與完善的一些構(gòu)想。比如可以通過提高信用卡合同的立法層次，建立以民事責(zé)任為中心的法律責(zé)任體系，頒布信用卡合同的規(guī)范文本等等措施，使信用卡合同不斷趨于成熟，筆者也期望能夠通過對信用卡合同法律規(guī)制的探索，為如何實現(xiàn)信用卡業(yè)務(wù)的規(guī)范化、保護(hù)持卡人的合法權(quán)益等問題做出一點貢獻(xiàn)。
[Abstract]:Credit card, which is a credit card to the cardholder, is first produced in the United States. Because the credit card has the advantages of convenient carrying, full function of transfer and safe and quick, it has developed rapidly all over the world, and has become a widely used small electronic fund allocation tool and credit worker. With the rapid development of credit card business, credit card has become an indispensable medium of transaction consumption activities in social life, but accordingly, the inherent defects in the credit card payment system are gradually exposed, and countries often regulate the existing problems of credit card through the way of legislation.
In terms of the development of the credit card in China, in the past twenty years, in the direction of the international economy, the professional banks of our country have provided the credit card to the society in order to meet the needs of the market economy, such as shopping consumption, transfer and settlement. Compared with the developed countries, the credit card business of our country is not very mature in technical level, market cultivation, legal guarantee and so on. In terms of its legal regulation, there is a serious lack of legislation. So far, there is no special legislation on credit cards in our country. The only legislation for credit card is the Chinese people. The bank was issued in 1999, the bank card business management method > the rest is scattered in the Supreme People's court, the Supreme People's Procuratorate has several judicial interpretations and the Provisional Regulations of the Ministry of finance, which lacks a relatively complete legislative system. The lack of legislation will produce a series of legislation for the system of strong potential risk of credit card. The unforeseen malpractice, such as the right and duty of the issuing bank and the cardholder, can not be clearly defined, so that the cardholder is often limited by the format contract of the card issuing bank and is in a weak position. Again, there is no clear provision for the civil liability of the credit card parties, and it will inevitably lead to a large number of disputes. Thus, the law of the credit card is made. Regulation, especially in civil law, is very necessary.
The author believes that, although there are many legal problems involved in the credit card, the credit card contract is the most important factor. As long as it can guarantee and regulate the credit card contract systematically and comprehensively, it will inevitably set a limited standard for the parties' behavior, effectively prevent the occurrence of the illegal behavior of the credit card, and reduce the credit card disputes. At the same time, a best balance of interests is set up between the parties of the credit card, to fully safeguard the economic interests of all parties and to realize the balance of efficiency and fairness. Therefore, the study of the credit card contract is necessary and necessary. This article will aim at realizing the effective legal regulation of the credit card contract and try to make the credit card. The contract is different from the general monetary contract and the service contract. Starting with the basic composition of the credit card contract, the paper discusses the four aspects of the credit card contract from the basic situation, the contract right in the credit card contract, the contract obligation and the contract responsibility.
First of all, this part is an overview of the credit card contract. This part is an introduction to the full text, which makes a general explanation of some basic conditions in the credit card contract. For the object of discussion, the credit card referred to in this article refers to the credit card in the strict sense, which is mainly issued by the bank, and the cardholder is not required to consume in advance. On the basis of the main body of the credit card legal relationship, the author defines the basic subject of a series of complex credit card contracts as the issuing bank, the cardholder, the three party of the special merchant, and the credit card contract of the three parties as the focus of this paper, and the law of the credit card contract. In the analysis of the law nature, the contract nature of the issuing bank and the cardholder is defined as a mixed contract based on the credit. The contract between the issuing bank and the special merchant tends to be independent guarantee that the nature of the contract between the cardholder and the special merchant is different because of the specific circumstances. As a credit card, the contract has the best contract. In the end, we conclude that the credit card contract is a special legal relationship with related credit links, thus establishing the research datum of the full text.
Secondly, it introduces the rights and obligations of the credit card contract. This part is an essential part of this article. In the part of the credit card contract, the rights are divided into general rights and special rights, and the emphasis is placed on the special rights of the cardholders. The general right is from the issuing bank. The cardholder, the special merchant and the guarantor's respective rights should be analyzed, for example, the issuer has the right to stop a card holder from using a credit card and so on. For special rights, it is from the protection of the interests of the cardholder that the cardholder should enjoy the right to know and defer the condition of change, so as to balance the cardholder and the issuing bank. In the part of the obligation of the credit card contract, due to the correspondence of the rights and obligations in the double contract, the obligation of the credit card contract is discussed relative to the subject of the right, and the part of the following credit card contract responsibility is well paving.
The part of the credit card contract responsibility is the focus of this article. There may be civil liability, administrative responsibility and even criminal responsibility in the legal relationship of credit card. However, it is obvious that the civil liability is more important to safeguard the interests rather than the punishment, which embodies the spiritual principle of the civil law. Non contractual liability mainly refers to the liability for negligence and liability for tort, while the contractual liability includes the liability for breach of contract and the liability of guarantee. This article will focus on the analysis of the liability of the credit card contract. In the part of the liability for breach of contract, the liability for breach of contract in the practice of credit card is mainly divided into the civil liability and letter produced when the credit card is overdrawn. The civil liability to stop and pay by the card is divided and discussed in detail according to the different subjects and different time points. In the respect of the responsibility, the guarantee responsibility for the credit card guarantor should be analyzed from the scope of responsibility, the time limit for responsibility and the three sides of the defense. It deepens the credit card contract system. Understanding and Understanding of Guarantee Contract in Subordinate Status.
At the end of the article, the author puts forward some ideas about the legal regulation and perfection of the credit card contract, for example, by improving the legislative level of the credit card contract, establishing the legal responsibility system centered on the civil liability, promulgation of the standard text of the credit card contract and so on, so that the credit card contract tends to mature, and the author also expects that the credit card contract will become mature. Through the exploration of the legal regulation of the credit card contract, we can make a little contribution to the standardization of the credit card business and the protection of the legitimate rights and interests of the cardholders.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D922.281
本文編號：2154133
[Abstract]:Credit card, which is a credit card to the cardholder, is first produced in the United States. Because the credit card has the advantages of convenient carrying, full function of transfer and safe and quick, it has developed rapidly all over the world, and has become a widely used small electronic fund allocation tool and credit worker. With the rapid development of credit card business, credit card has become an indispensable medium of transaction consumption activities in social life, but accordingly, the inherent defects in the credit card payment system are gradually exposed, and countries often regulate the existing problems of credit card through the way of legislation.
In terms of the development of the credit card in China, in the past twenty years, in the direction of the international economy, the professional banks of our country have provided the credit card to the society in order to meet the needs of the market economy, such as shopping consumption, transfer and settlement. Compared with the developed countries, the credit card business of our country is not very mature in technical level, market cultivation, legal guarantee and so on. In terms of its legal regulation, there is a serious lack of legislation. So far, there is no special legislation on credit cards in our country. The only legislation for credit card is the Chinese people. The bank was issued in 1999, the bank card business management method > the rest is scattered in the Supreme People's court, the Supreme People's Procuratorate has several judicial interpretations and the Provisional Regulations of the Ministry of finance, which lacks a relatively complete legislative system. The lack of legislation will produce a series of legislation for the system of strong potential risk of credit card. The unforeseen malpractice, such as the right and duty of the issuing bank and the cardholder, can not be clearly defined, so that the cardholder is often limited by the format contract of the card issuing bank and is in a weak position. Again, there is no clear provision for the civil liability of the credit card parties, and it will inevitably lead to a large number of disputes. Thus, the law of the credit card is made. Regulation, especially in civil law, is very necessary.
The author believes that, although there are many legal problems involved in the credit card, the credit card contract is the most important factor. As long as it can guarantee and regulate the credit card contract systematically and comprehensively, it will inevitably set a limited standard for the parties' behavior, effectively prevent the occurrence of the illegal behavior of the credit card, and reduce the credit card disputes. At the same time, a best balance of interests is set up between the parties of the credit card, to fully safeguard the economic interests of all parties and to realize the balance of efficiency and fairness. Therefore, the study of the credit card contract is necessary and necessary. This article will aim at realizing the effective legal regulation of the credit card contract and try to make the credit card. The contract is different from the general monetary contract and the service contract. Starting with the basic composition of the credit card contract, the paper discusses the four aspects of the credit card contract from the basic situation, the contract right in the credit card contract, the contract obligation and the contract responsibility.
First of all, this part is an overview of the credit card contract. This part is an introduction to the full text, which makes a general explanation of some basic conditions in the credit card contract. For the object of discussion, the credit card referred to in this article refers to the credit card in the strict sense, which is mainly issued by the bank, and the cardholder is not required to consume in advance. On the basis of the main body of the credit card legal relationship, the author defines the basic subject of a series of complex credit card contracts as the issuing bank, the cardholder, the three party of the special merchant, and the credit card contract of the three parties as the focus of this paper, and the law of the credit card contract. In the analysis of the law nature, the contract nature of the issuing bank and the cardholder is defined as a mixed contract based on the credit. The contract between the issuing bank and the special merchant tends to be independent guarantee that the nature of the contract between the cardholder and the special merchant is different because of the specific circumstances. As a credit card, the contract has the best contract. In the end, we conclude that the credit card contract is a special legal relationship with related credit links, thus establishing the research datum of the full text.
Secondly, it introduces the rights and obligations of the credit card contract. This part is an essential part of this article. In the part of the credit card contract, the rights are divided into general rights and special rights, and the emphasis is placed on the special rights of the cardholders. The general right is from the issuing bank. The cardholder, the special merchant and the guarantor's respective rights should be analyzed, for example, the issuer has the right to stop a card holder from using a credit card and so on. For special rights, it is from the protection of the interests of the cardholder that the cardholder should enjoy the right to know and defer the condition of change, so as to balance the cardholder and the issuing bank. In the part of the obligation of the credit card contract, due to the correspondence of the rights and obligations in the double contract, the obligation of the credit card contract is discussed relative to the subject of the right, and the part of the following credit card contract responsibility is well paving.
The part of the credit card contract responsibility is the focus of this article. There may be civil liability, administrative responsibility and even criminal responsibility in the legal relationship of credit card. However, it is obvious that the civil liability is more important to safeguard the interests rather than the punishment, which embodies the spiritual principle of the civil law. Non contractual liability mainly refers to the liability for negligence and liability for tort, while the contractual liability includes the liability for breach of contract and the liability of guarantee. This article will focus on the analysis of the liability of the credit card contract. In the part of the liability for breach of contract, the liability for breach of contract in the practice of credit card is mainly divided into the civil liability and letter produced when the credit card is overdrawn. The civil liability to stop and pay by the card is divided and discussed in detail according to the different subjects and different time points. In the respect of the responsibility, the guarantee responsibility for the credit card guarantor should be analyzed from the scope of responsibility, the time limit for responsibility and the three sides of the defense. It deepens the credit card contract system. Understanding and Understanding of Guarantee Contract in Subordinate Status.
At the end of the article, the author puts forward some ideas about the legal regulation and perfection of the credit card contract, for example, by improving the legislative level of the credit card contract, establishing the legal responsibility system centered on the civil liability, promulgation of the standard text of the credit card contract and so on, so that the credit card contract tends to mature, and the author also expects that the credit card contract will become mature. Through the exploration of the legal regulation of the credit card contract, we can make a little contribution to the standardization of the credit card business and the protection of the legitimate rights and interests of the cardholders.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D922.281
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前10條
1 孫立元;信用卡消費者的權(quán)益保護(hù)問題研究[D];華東政法大學(xué);2010年
2 金海東;我國信用卡合同若干法律問題研究[D];延邊大學(xué);2011年
3 范曉雪;我國金融消費者權(quán)益保護(hù)問題研究[D];東北財經(jīng)大學(xué);2011年
4 王瑤;銀行卡欺詐風(fēng)險防控機(jī)制法律研究[D];廣西大學(xué);2011年
5 徐靜;信用卡當(dāng)事人民事責(zé)任研究[D];中國政法大學(xué);2010年
6 黃松濤;信用卡交易中持卡人權(quán)益保護(hù)研究[D];揚州大學(xué);2010年
7 杜娟;論信用卡消費者權(quán)益的保護(hù)[D];河北大學(xué);2010年
8 鄢欏巒;信用卡消費者權(quán)利保護(hù)立法完善研究[D];西南大學(xué);2012年
9 付曉飛;信用卡合同格式條款研究[D];南昌大學(xué);2012年
10 鄭磊;信用卡合同法律問題研究[D];復(fù)旦大學(xué);2012年
本文編號：2154133
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