Alternative Dispute Resolution for Financial Consuming Disputes

• Main Authors: Chung-Wei Tsai, 蔡仲威
• Other Authors: Yu-Ting Lin
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/67426895677269051074

碩士 === 東吳大學 === 法律學系 === 101 === Because of the 2008 Lehman Brothers event, we have the opportunity to re-examine the alternative dispute resolution for financial consuming disputes in Taiwan and to rethink the question of financial consumer protection. The “Financial Consumer Protection Act” was enacted and the “Financial Ombudsman Institution” which provides financial consumers an alternative dispute resolution was established as well. The Financial ADR is entrusted to solve small financial disputes with fair, reasonable, prompt procedure and effectively. This thesis first introduce the different ADR types and their value to illustrate the necessity and benefit of ADR, and outlines the use of common types of ADR in our country. Second, this thesis interprets the current situation of the financial ADR in Taiwan, mainly introducing “Financial Ombudsman Institution”, and referring to other financial ADRs. Then, by the comparative study of the system and the operation of “U.S. FINRA DR” and “Australia FOS”, the thesis discuss the organization, procedures, effect and other related issues of financial ADR. The FOI established in 2011 is more like an institution toward consumer protection, and therefore, this thesis attempts to analysis the FOI system in three aspects, organizations, procedure, and effects. First of all, the FOI might operate more efficiently if the Ombudsmen are full-time employed. In addition, to make the professional and independent judgment, it is very important to let the Ombudsmen and mediation officers have the immunity. Furthermore, I suggest that non-profit foundation is not the only choice for FOI whereas a charitable organization suits as well. Second, according to the user-pay principle, financial consumers should pay for the dispute resolving services and therefore preventing the FOI being abused. Also, it’s important to simplify the procedure, so the pre-examiners system is no longer necessary. The system which revised is enough to provide financial consumers fair ADR solution. It is also important to allow the FOI to have the right to investigate the evidences. Additionally, some scholars think that financial consumers who received the same goods or services from the financial service provider when the disputes arise should be merged in the same procedure. But, this article does not think so. Last but most important, the final judgment should be made public so that people can realize the reason and can make the financial market more efficiency. Third, financial consumer has the right to accept the FIO’s final decision or not under current system. And only the financial consumer can request the FIO to send the ombudsman statement to a court for further approval decision within a peremptory period of 90-days counting from the day on which the ombudsman case achieves a resolution. However, the financial institutions might suffer from the risk of uncertainty. So it is much fair to let the financial services providers and financial customer have the same qualification. The thesis try to propose comments and recommendations in the conclusion echoing to the goal established in the first part of this thesis. The financial ADR should be designed to be trusted with fair, reasonable, prompt and effective process. Moreover, except being an ex-post system of the financial disputes, the educational function of the FOI is very important as well.