On December 27th, the People’s Bank of China publicly solicited opinions on the Implementation Measures of the People’s Bank of China for the Protection of Financial Consumers’ Rights and Interests (Draft for Comment). The "Implementation Measures" specifically regulate the behavior norms of financial institutions, the protection of consumers’ financial information, and the settlement of financial consumption disputes.
What should financial institutions do?
Protection of consumers’ rights and interests should be included in the assessment.
The "Implementation Measures" require that financial institutions should formulate the overall plan and specific work measures for the protection of financial consumers’ rights and interests in their own institutions. Establish a full-time department or designate a lead department to protect the rights and interests of financial consumers, clarify the responsibilities of departments and personnel, and ensure that they have enough manpower and material resources to work independently.
Financial institutions shall carry out special training on the protection of financial consumers’ rights and interests at least once a year.
When financial institutions carry out evaluation, they should take the protection of financial consumers’ rights and interests as an important content, rationally allocate the proportion and weight of relevant indicators, comprehensively consider business compliance, customer satisfaction, timely complaint handling rate and qualified rate, and not simply take the number of complaints as the evaluation index.
Relevant information shall be kept for at least three years after the termination of business relationship.
The "Implementation Measures" stipulate that when financial institutions disclose information on financial products and services, they should use a way that is conducive to the reception and understanding of financial consumers. The rules for the collection and use of consumer financial information should be made public, and the purpose, method and scope of the collection and use of consumer financial information should be clearly stated. For important information related to the immediate interests of financial consumers, such as interest rates, fees, benefits and risks, key technical terms should be explained according to the complexity and risk level of financial products and services, and financial consumers should be confirmed to have received complete information in an appropriate way.
When explaining important contents and disclosing risks to financial consumers, financial institutions shall keep relevant materials in accordance with laws, regulations and regulatory provisions, and the retention time shall not be less than three years from the date of termination of business relations. Where laws and administrative regulations provide otherwise, such provisions shall prevail. The retained materials include but are not limited to: product or service agreement confirmed by financial consumers, and risk warning letter confirmed by financial consumers; Record audio and video recordings or system logs and other related data messages that explain important contents to financial consumers.
What can’t financial institutions do?
Shall not handle business on behalf of financial consumers without authorization.
The Implementation Measures require that financial institutions should assess the suitability of financial products and services to financial consumers according to their characteristics, reasonably classify the risk levels of financial products and services and the risk tolerance levels of financial consumers, and provide appropriate financial products and services to appropriate financial consumers.
Financial institutions shall ensure the property safety of financial consumers when purchasing and using financial products and services according to law, and shall not illegally misappropriate or occupy financial consumers’ funds and other financial assets.
At the same time, we should respect the real wishes of financial consumers to buy financial products or services, and we should not arbitrarily act as agents for financial consumers to handle business, modify financial consumers’ business instructions, or force tying other products or services.
There must be no format clause.
Unfair and unreasonable regulations for consumers
Many consumers usually sign the format clauses of financial institutions without reading them clearly. In order to prevent the infringement of consumers’ legitimate rights and interests, the Implementation Measures require that when financial institutions provide financial products or services to financial consumers, they should draw financial consumers’ attention to the contents of financial products or services that are of great interest to financial consumers, such as the quantity, interest rate, expenses, time limit and method of performance, precautions and risk warning, and explain them according to the requirements of financial consumers. If the standard terms are in electronic form, they should be identifiable and easy to obtain.
At the same time, financial institutions shall not make provisions with the following five contents in the form of standard clauses, notices, statements, notices, etc.: (1) Reducing or exempting financial institutions from the liability for compensation for financial consumers’ property losses; (2) stipulating that financial consumers shall bear liquidated damages or damages exceeding the statutory limit; (3) Exclude or restrict the right of financial consumers to inquire, delete or modify their financial information according to law; (4) excluding or restricting the right of financial consumers to choose financial products or services provided by other financial institutions; (5) Other unfair and unreasonable provisions for financial consumers.
The "Implementation Measures" require that financial institutions should promptly revise or clean up the format clauses and service agreement texts that infringe on the legitimate rights and interests of financial consumers.
Promoting non-guaranteed products should not mislead people into believing that profits are guaranteed.
The "Implementation Measures" require that financial institutions should be responsible for the authenticity of marketing propaganda content. The actual obligations of financial institutions shall not be lower than the standards promised to financial consumers in the form of advertisements, materials or explanations in marketing and publicity activities.
Financial institutions shall not engage in the following five acts when conducting marketing and publicity activities: (1) false, fraudulent, concealed or misleading propaganda; (2) Exaggerated propaganda on performance or product income; (3) misleading financial consumers into thinking that the financial management department has provided a guarantee for the financial product or service by using the procedures of auditing or filing the financial product or service by the financial management department; (4) The marketing propaganda contents of non-guaranteed investment financial products mislead financial consumers into believing that the principal can be guaranteed to be safe or profitable; (five) other acts in violation of laws, regulations and regulatory provisions related to the protection of the rights and interests of financial consumers.
Shall not be forced to collect consumer financial information in disguise.
The Implementation Measures has a special chapter to regulate the protection of consumers’ financial information, including consumers’ personal identity information, property information, account information, credit information, financial transaction information and other information related to the purchase and use of financial products or services by specific consumers.
According to the "Implementation Measures", financial institutions should follow the principles of legality, legitimacy and necessity in collecting and using consumer financial information, with the express consent of financial consumers. Financial institutions shall not collect consumer financial information unrelated to their business, nor shall they collect information in an improper way, nor shall they collect consumer financial information in a disguised form.
Financial institutions shall not take the consent of financial consumers to the use of financial information for external provision as a prerequisite for establishing business relations with financial consumers, unless the nature of the business relationship requires prior consent.
Where a financial institution obtains the consent of consumers for the collection and use of financial information through standard clauses, it shall specify the purpose, method, content and scope of use of the collection in the clauses, and remind financial consumers of the possible consequences of the consent in a conspicuous way as easily as possible.
At the same time, financial institutions shall use consumer financial information in accordance with the provisions of laws and regulations and the purposes agreed by both parties, and shall not use it beyond the scope.
Can’t "throw the pot" to the outsourcing service provider
The "Implementation Measures" stipulate that the obligation of financial institutions to protect consumers’ financial information security will not be transferred or reduced because of their cooperation with outsourcing service providers.
Financial institutions shall fully review and evaluate the ability of outsourcing service providers to protect consumers’ financial information, clarify the responsibilities and confidentiality obligations of outsourcing service providers to protect consumers’ financial information in relevant agreements, and take necessary measures to supervise outsourcing service providers to perform the above responsibilities and obligations. After the termination of the cooperative relationship, the financial institution shall supervise the outsourcing service provider to destroy the consumer financial information obtained from the financial institution in time.
Encourage financial institutions to transfer their financial information to other financial institutions designated by financial consumers on the premise of technical feasibility.
What if something goes wrong?
The "Implementation Measures" clarify that if there is a financial consumption dispute between financial consumers and financial institutions, they should first complain to the financial institutions. If a financial consumer does not accept the handling of complaints made by a financial institution, he may make a complaint through the branch of the People’s Bank of China where the financial institution has its domicile or where the business behavior takes place.
After receiving complaints from financial consumers, the branches of the People’s Bank of China can answer whether to accept them on the spot, and should answer them on the spot; If you can’t answer on the spot, you should make a decision on whether to accept it within 7 working days from the date of receiving the complaint; If the complainant needs to make corrections to the complaint application, he shall make a decision on whether to accept it within 7 working days from the date of completion of the correction. For complaints that are not accepted, the complainant shall be informed of the reasons for not accepting them. For the complaints received, the complaint shall be transferred to the complained financial institution for handling or to the financial consumer dispute mediation organization to provide mediation services within 5 working days from the date of receiving the decision.
The financial institution shall reply to the complainant within 15 working days from the date of receiving the complaint forwarded by the branch of the People’s Bank of China. If the situation is complicated, the handling period may be extended, and the complainant shall be informed of the reasons for the extension, but the longest handling period shall not exceed two months. (Reporter Cheng Wei)
