| 摘要: | 美國雷曼兄弟導致次級房貸危機後，金融風暴席捲全球，蔓延到台灣，引發連動債相關之金融消費者與金融服務業之爭議，追究其主要原因不外乎金融服務業於推介金融產品及服務時，對於內容及交易方式、風險等未盡說明義務，造成資訊不對等之弱勢一方即金融消費者，承擔無法承受之風險；過去相關說明義務、適合性原則多存在於行政命令或各業自律規範，違反效果常有爭議。在法制不足情況下，金融消費者更需耗費時間、金錢，藉由訴訟爭取權益。檢視我國法制，相關規範確實有不足情形，促使我國正視金融消費者之權益，而訂定金融消費者保護法。而金融消費評議中心係依據金融消費者保護法，由政府捐助基金成立之財團法人，積極辦理消費教育宣導外，於金融消費爭議發生時，基於公平合理原則，有效處理之，以強化金融消費者對市場信心，促進金融市場健全發展。
除了推陳出新的金融商品及服務日趨複雜專業外，金融環境變化的挑戰及因應金融科技快速發展，金融消費者個人資料價值也衍生相關問題，透過創新的演算法，大數據對於不斷增加、種類多元的資料快速進行分析和處理特點，可以預測金融消費者下一步行為，助於金融服務業提升服務及開拓市場，但在資料蒐集、處理、利用、分析之過程，均可能損及金融消費者的隱私權，在金融科技及隱私權應如何消長衡平，也是個難題。
本文檢視銀行業投資型金融商品，說明金融消費者保護之必要性後，介紹英國公評人等外國機制，並與我國金融保護實體規範相比較；在我國金融消費者保護實踐部分，積極層面，審視金融服務業提供金融商品或服務應遵守之廣告真實性、認識客戶、適合性原則、說明義務；消極層面，分從金融消費者保護法、民法、消費者保護法、個人資料保護法等探討金融消費者受法律保護之權利，以及金融消費者權益受損時救濟途徑。藉由評議及判決案例，瞭解金融服務業侵害金融消費者權益之態樣；而評議與判決間，因為評議公平合理原則的適用，金融消費者更有機會獲得實質上正義，最末提出研究現行實務見解之疑義，嘗試釐清並提出解決之道。
As the financial turmoil of the subprime mortgage crisis caused by Lehman Brothers Holdings Inc. swept across the globe, the disputes related to structured notes by and between financial consumers and the financial service industry have drawn scholastic as well as practical attention. One core issue is that the financial consumers were often not fully informed of the material information, such as the contents, the trading methods and risks of the financial products promoted by the financial service industry before and during the transactions. Such issues may exacerbate the financial consumers' disadvantaged position and increase the risk of the transaction while the financial institutions' duty to reveal the information had relied heavily on their self-discipline, or the inconsistent and case-by-case administrative orders rendered by the competent authority. Lack of comprehensive regulation, as a result, has cast an unbearable burden on the financial consumers impaired, seeking remedies through legal actions.
Such legal deficiencies have further triggered the institutional governance, including the promulgation of the Financial Consumer Protection Law, and the establishment of the Financial Ombudsman Institution, serving as a consortium funded by the government under the Financial Consumer Protection Law, to protect the financial consumers’ rights by actively conducting consumer education and promotion, by handling disputes of financial consumption based on the principle of fairness and reasonableness, as well as by facilitating the robust and sustainable financial market.
In addition to the increase of complex diversified financial products and services, the emergence of digital finance and the rapid growth of financial technology has aroused even greater challenges to the supervision and governance of the financial markets, i.e., the introduction of innovative algorithms and big data enables the financial industries' to predict the consumers' behaviors used to enhance the service and expand the business, by collecting the consumers' personal information have led to the concern of privacy protection. While the use of financial technology became inevitable, how to draw a line between the market drive and the protection of the consumers' right to privacy, on the basis of the current regulatory mechanisms, has become even more critical.
The thesis aims to provide a regulatory solution to the aforesaid issue by adopting a comparative study approach. After categorizing various financial products in the banking industry and explaining the prerequisite of my thesis; that is, the protection of financial consumers is necessary and essential to the financial regulation, this research paper furtherly sketches the foreign mechanisms, such as the British Financial Ombudsman Service, as the basis for the comparative study of the domestic regime. For the further prescription of the domestic legal mechanism, this thesis dives into different aspects—by practice or by law—of the contemporary regulatory situation. The practical aspect includes without limitation the review of the financial institutions' compliance of code of conducts, such as the information provided to the consumers during the promotion, the implementation of "know your clients (KYC)", the adoption of the doctrine of suitability, the information revealed to the consumers, etc. The legal aspect covers the interpretation of multiple laws and regulations, including the Financial Consumer Protection Act, Civil Code, Consumer Protection Act, and Personal Data Protection Act, etc., joining with the judicial interpretations of hand-on cases where the consumers' rights were infringed and remedied.
The author advocates that the principle of fairness and reasonableness is one solution. With the application and interpretation of such principle in the mediations and judgments, the financial consumers can better seek remedies and the substantive justice in need. |
