论我国金融监管和解制度的构建

Construction of the Financial Regulatory Settlement System in China

中文关键词:  金融监管  监管和解  整体金融利益  当事人承诺  成本比较原则

英文关键词:financial regulation  regulatory settlement  overall financial interests  commitments by parties concerned  cost comparison principle

中文摘要:

      金融监管和解制度的使命在于促进金融监管职责的有效履行,增进效率、秩序、安全等整体金融利益。金融监管和解制度具有替代性、灵活性、及时性、协商性、互动性、低成本与高效率等特点,能够增强监管实效,有利于监管机构提升执法效果。金融监管和解制度并非对传统行政权力理念的彻底否定与取代,而是融合了传统行政权力理念与现代契约理念的新型金融监管制度。金融监管和解权是金融监管机构为履行法定职责而享有的权力,性质上属于金融监管权。金融监管权的核心在于监督金融法律的实施,而非行政管理。金融监管和解制度不再强调金融监管机构的中心地位,而是强调金融监管机构与当事人达成合意。金融监管和解不是行政和解,金融监管机构行使监管和解权不存在行政权不得处分的理论障碍。从实体规则和程序规则等方面体系化建构金融监管和解制度,有助于准确理解与适用该制度。

英文摘要:

      The financial regulatory settlement system aims to facilitate the effective performance of financial regulatory duties and enhance the overall financial interests, such as efficiency, order, and security. Characterized by substitutability, flexibility, timeliness, negotiability, interactivity, low cost, and high efficiency, the system strengthens regulatory effectiveness and assists regulatory authorities in improving law enforcement outcomes. Rather than completely negating or replacing the traditional concept of administrative power, the financial regulatory settlement system represents a new regulatory system that integrates the traditional concept of administrative power with the modern concept of contract. The authority to conclude regulatory settlements is granted to financial regulatory authorities for the performance of their statutory duties and, by nature, falls within the realm of financial regulatory power. The core of financial regulatory power lies in overseeing the implementation of financial laws, rather than in administrative management. The financial regulatory settlement system no longer emphasizes the central position of financial regulatory authorities but instead prioritizes the attainment of mutual agreement between financial regulatory authorities and the parties concerned. Financial regulatory settlement is distinct from administrative settlement, and therefore, there is no theoretical obstacle that administrative power is non-disposable when financial regulatory authorities exercise the power of regulatory settlement. Systematically constructing the financial regulatory settlement system through both substantive and procedural rules is conducive to the accurate understanding and application of this system. 