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Legal Governance on Fintech Risks: Effects and Lessons from China

Published online by Cambridge University Press:  12 August 2020

Kang YUAN
Affiliation:
Wuhan University and Fudan University
Duoqi XU
Affiliation:
Wuhan University and Fudan University

Abstract

Fintech risks have a special type of structure and formation mechanism; regular updates and a complete financial legal system are needed to implement an effective legal governance. China’s fintech development is leading the world, but its lagging legal development does not match its rank in the field. Due to the difficult co-ordination of regulatory goals, unclear allocation of regulatory power, insufficient risk identification, and incomplete regulation tools, China’s legal governance on fintech risks has been swinging between the paths of suppressive, indulging, and adaptive regulation. It is urgently necessary to follow the fintech-risk law and fully tap into the local resources and explore the intervening path with more proactivity, foresight, and refined characteristics, through specification of the legal status and governing power of the intervening entity, the institutional basis and legal effect of interventional means, and the governing key and constitutional rules of intervening objects, to establish a legal-governance system on fintech risks that is innovation-friendly, regulatorily effective, and safe at the bottom line, fully covering the whole process.

Type
Legal Risk Society in East Asia
Copyright
© Cambridge University Press and KoGuan Law School, Shanghai Jiao Tong University 2020

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Footnotes

This paper is the staged result of the Chinese National Social Science Fund Project, “Research on the Major Theoretical and Practical Issues of China’s Internet Financial Market Access and Supervision Legal System” (Grant No. 16BFX98) and the Ministry of Education Youth Foundation Project on Humanity and Social Science Research “Research on the Supervision Response to the Fintech Applications from the Perspective of Risks Prevention” (grant No. 18YJC820083) and supported by the Fundamental Research Funds for the Central Universities.

*

Associate Professor of Law at Wuhan University and Deputy Director of Wuhan University Institute of Cyberspace Governance. He has research interests on financial regulation and company law.

**

Professor of Fudan Law School. Her research interests are on fintech law, data protection, and tax law. Please direct all correspondence to Duoqi Xu, Room 422, Leo KoGuan law building, 2005 Song Hu Road, Xin Jiang Wan Campus, xuduoqi@fudan.edu.cn. The authors are very grateful for the proofreading of the paper by PhD candidate Firoz Ehsan at Shanghai Jiao Tong University and Tang Feng at Wuhan University.

References

Accenture (2019) “Global Fintech Investment Surged in 2018 with Investments in China Taking the Lead,” https://newsroom.accenture.com/news/global-fintech-investments-surged-in-2018-with-investments-in-china-taking-the-lead-accenture-analysis-finds-uk-gains-sharply-despite-brexit-doubts.htm (accessed 3 November 2019).Google Scholar
Arner, Douglas W., Janos, Barberis, & Buckley, Ross P. (2015) “The Evolution of Fintech: A New Post-crisis Paradigm?47 Georgetown Journal of International Law 1271–319.Google Scholar
Beijing.gov.cn (2018) “Beijing Municipal Planning for Promotion of FinTech Development (2018–2020),” http://www.beijing.gov.cn/zhengce/zhengcefagui/201905/t20190522_61635.html (accessed 11 November 2019).Google Scholar
Bradley, Christopher G. (2018) “FinTech’s Double Edges.” 93 Chicago-Kent Law Review 6172.Google Scholar
Brummer, Chris, & Yadav, Yesha (2019) “Fintech and the Innovation Trilemma.” 107 Georgetown Law Journal 235307.Google Scholar
Cambridge Centre for Alternative Finance (2018) “2018 Global Fintech Hub Report: The Future of Finance Is Emerging: New Hubs, New Landscapes,” https://www.jbs.cam.ac.uk/fileadmin/user_upload/research/centres/alternative-finance/downloads/2018-ccaf-global-fintech-hub-report-eng.pdf (accessed 6 November 2019).Google Scholar
Chai, Ruijuan (2017) “Extraterritorial Experiences and Inspiration of Regulatory Sandbox.” 8 Law Science 2740.Google Scholar
Chang, Jian (2019) “Thesis on ‘Penetrating’ Regulation and the Institutional Reform of China’s Financial Regulation.” 1 Journal of Huazhong University of Science and Technology (Social Science Edition) 111–7.Google Scholar
Chen, Shi (2018) “Challenge of Technological Regulation from FinTech Perspective.” 3 Tsinghua Financial Review 3940.Google Scholar
Chen, Zhifeng, & Qian, Rujin (2018) “Research on China’s Financial Regulatory Mechanism of Blockchain: Consider the Establishment of ‘Chinese-style Sandbox Regulation’ as Institutional Access.” 1 Shanghai Finance 60–8.Google Scholar
China Banking Regulatory Commission (2015) “Guiding Opinion on Promoting Healthy Growth of Internet Finance,” http://www.cbrc.gov.cn/showFfjzDoc/E02EFF7A63564F8B9DF4ED2B3A736310.html (accessed 7 November 2019).Google Scholar
China Internet Network Information Center (2019) “The 43rd Statistical Report of Chinese Internet Network Development Situation,” http://www.cnnic.net.cn/hlwfzyj/hlwxzbg/hlwtjbg/201902/P020190318523029756345.pdf (accessed 18 October 2019).Google Scholar
Di, Gang (2018) “Insight of FinTech from Both Supply Side and Demand Side.” 5 China Finance 71–3.Google Scholar
Dowd, Kevin (2009) “Moral Hazard and the Financial Crisis.29 Cato Journal 141–66.Google Scholar
Feng, Guo, & Jiang, Shasha (2013) “Thesis on the Dissimilation and Regulation of P2P Lending Platforms in China.” 5 Studies in Law and Business 2937.Google Scholar
Feng, Guo, & Yuan, Kang (2013) Finance Law Theories and Practices from the Perspective of Social Changes, Beijing: Peking University Press.Google Scholar
Finance.sina.com (2017) “Scale of Internet Finance Will Reach 17 Trillion in 2020,” https://finance.sina.com.cn/stock/t/2017–01–17/doc-ifxzqnva3865720.shtml (accessed 15 June 2019).Google Scholar
Financial Stability Board (2017) “Financial Stability Implications from Fintech: Supervisory and Regulatory Issues that Merit Authorities’ Attention,” https://www.fsb.org/wp-content/uploads/R270617.pdf (accessed 6 November 2019).Google Scholar
Hong Kong Stock Exchange (2018) “Financial Technology Applications and Related Regulatory Framework,” https://www.hkex.com.hk/-/media/HKEX-Market/News/Research-Reports/HKEx-Research-Papers/2018/CCEO_Fintech_201810_e.pdf (accessed 6 November 2019).Google Scholar
Huang, Yiping, & Ge, Tingting (2019) ”Assessing China’s Financial Reform: Changing Roles of the Repressive Financial Policies.” 39 Cato Journal 6585.Google Scholar
KPMG (2018) “The Fintech 100: Announcing the World’s leading Fintech Innovators for 2018,” https://home.kpmg/xx/en/home/media/press-releases/2018/10/fintech-100-worlds-leading-fintech-innovators-2018.html (accessed 3 November 2019).Google Scholar
KPMG (2019) “The Pulse of Fintech 2018: Biannual Global Analysis of Investment in Fintech,” https://assets.kpmg/content/dam/kpmg/xx/pdf/2019/02/the-pulse-of-fintech-2018.pdf (accessed 6 November 2019).Google Scholar
Levitin, Adam J. (2011) “In Defense of Bailouts.” 99 Georgetown Law Journal 435514.Google Scholar
Li, Min (2019) “Systematic Risk of FinTech: Regulatory Challenge and Response.” 2 Securities Market Herald 6978.Google Scholar
Li, Tianyu, Feng, Ye, & Zhang, Yishan (2017) “The Analysis on Signal Source Identification, Rule Establishment and Conduction Path of Macro-Prudential Policy.” 5 Economics Review 123–38.Google Scholar
Li, Wei (2017a) “Development and Regulation of FinTech.” 8 China Finance 14–6.Google Scholar
Li, Wenhong (2017b) “International Reference of FinTech License Management.” 18 China Finance 1923.Google Scholar
Li, Wenhong, & Jiang, Zeshen (2017) “The Development and Supervision of Fintech: From the Perspective of Regulators.” 3 Financial Regulation Research 113.Google Scholar
Li, Youxing, & Wang, Lin (2019) “Cooperative Governance Path of FinTech Regulation.” 1 Journal of Zhejiang University (Humanity and Social Sciences) 214–26.Google Scholar
Liu, Wei (2015) “Policy Pilot: Generation Mechanism and Internal Logic—Case Study Based on Performance Management Policy of China’s Public Departments.” 5 Chinese Public Administration 113–9.Google Scholar
Magnuson, William (2018) “Regulating Fintech.” 71 Vanderbilt Law Review 1167–226.Google Scholar
Minto, Andrea, Voelkerling, Moritz, & Wulff, Melanie (2017) “Separating Apples from Oranges: Identifying Threats to Financial Stability Originating from Fintech.” 12 Capital Markets Law Journal 428–65.CrossRefGoogle Scholar
Moody’s Analytics (2018) “China Banking Insurance Regulatory Commission Replaces CBRC and CIRC,” https://www.moodysanalytics.com/regulatory-news/apr-09–18-china-banking-insurance-regulatory-commission-replaces-cbrc-and-circ (accessed 4 November 2019).Google Scholar
Sohu.com (2017) “Frightened for 24 hours! Review the Everbright Fat Finger Incident which Is More Bizarre than the Novel,” http://www.sohu.com/a/201472670_736707 (accessed 11 November 2019).Google Scholar
The People’s Bank of China (2019a) “Announcement Regarding the Prevention of Token Issuing and Financing Risks,” http://www.pbc.gov.cn/goutongjiaoliu/113456/113469/3374222/index.html (accessed 7 November 2019).Google Scholar
The People’s Bank of China (2019b) “Overall Operation of Payment System in 2018,” http://www.pbc.gov.cn/zhifujiesuansi/128525/128545/128643/3787878/index.html (accessed 3 November 2019).Google Scholar
Tianhong Asset Management Co., Ltd (2018), “2018 Annual Report of Tianhong Yu’ e Bao,” http://pdf.dfcfw.com/pdf/H2_AN201903271310134341_1.pdf (accessed 9 November 2019).Google Scholar
Wang, Huaiyong, & Zhong, Ying (2017) “Thesis on Rule of Soft Law of Internet Finance.” 6 Modern Law Science 94105.Google Scholar
Wang, Qingsong (2018) “Thesis on Legal Control Mechanism of the Systematic Risk of Individual P2P Lending.” 11 Business Economics and Administration 89.Google Scholar
Wang Dai Tian Yan (2019) https://www.p2peye.com/shuju/hysj/ (accessed 5 October 2019).Google Scholar
Xie, Guichun, & Feng, Guo (2015) “Information Enabling, Information Risk Prevention and Information Control: Reform Path of Financial Law from Information Perspective.” 6 Northern Legal Science 3848.Google Scholar
Xu, Duoqi (2018) “Social Characteristics and Regulatory Innovation of Internet Finance Risks.” 5 Chinese Journal of Law 2039.Google Scholar
Xu, Duoqi, Tang, Shiya, & Guttman, Dan (2019) “China’s Campaign-Style Internet Finance Governance: Causes, Effects, and Lessons Learned for New Information-Based Approaches to Governance.” 35 Computer Law & Security Review 314.CrossRefGoogle Scholar
Yang, Song, & Zhang, Yongliang (2017) “Transformation of FinTech Regulatory Path and China’s Choice.” 8 Law Science 314.Google Scholar
Ying, Feihu, & Tu, Yongqian (2010) “The Information Tool in Public Regulation.” 4 Social Sciences in China 116223.Google Scholar
Yuan, Kang (2014) “Capital Formation, Investor Protection and the Institutional Supply for Equity Crowdfunding: A Discussion of the Relative System Design Path.” 12 Securities Market Herald 411.Google Scholar
Yuan, Kang, & Deng, Yangli (2019) “Application of FinTech and Its Control from Moral Hazard Perspective.” 7 Securities Market Herald 13–19+40.Google Scholar
Zhai, Chenxi, et al. (2018) “Research on the Application and Regulation of Blockchain in Chinese Securities Market.” 7 Financial Regulation Research 3354.Google Scholar
Zhao, Yao (2016) “The Characteristics, Emergence, Functions and Risks of Fintech.” 9 Financial Regulation Research 5770.Google Scholar
Zhou, Zhongfei, & Li, Jingwei (2018) “Transformation of Beijing’s Financial Regulatory Model of FinTech.” 5 Chinese Journal of Law 319.Google Scholar
Zhu, Junsheng, & Cai, Jianying (2019) “The Application of Financial Technology in Insurance Industry: A Case Study on Ping An Insurance Group,” http://en.drc.gov.cn/2019–06/18/content_37481879.htm (accessed 6 November 2019).Google Scholar
Zhu, Taihui, & Chen, Lu (2016) “Research on Potential Risks of FinTech and Regulatory Response.” 7 Financial Regulation Research 1832.Google Scholar
Шуст, Павел Михайлович, & Достов, Виктор Леонидович (2018) “Examining the Regulatory Toolbox: Comparative Analysis of Regulatory Responses to Fintech,” manuscript submitted for publication, https://pureportal.spbu.ru/en/publications/изучая-новые-регулятивные-инструменты-сравнитальный-анализ-регуля (accessed 11 November 2019).Google Scholar
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