Notice on the Opinions on Comprehensively Promoting the Construction of a Diversified Mechanism for Resolving Financial Disputes

Supreme People's Court People's Bank of China China Banking and Insurance Regulatory Commission

The circular on "Opinions on Comprehensively Promoting the Construction of a Diversified Resolution Mechanism for Financial Disputes" was issued

 

Fa Fa [2019] No. 27

 

The Higher People's Courts of all provinces, autonomous regions and municipalities directly under the Central Government, and the branches of the Production and Construction Corps of the Higher People's Courts of the Xinjiang Uygur Autonomous Region; People's Bank of China Shanghai headquarters, branches, business management departments, provincial capitals (capitals) city center branches, sub-provincial city center branches; Banking and Insurance Regulatory Bureaus; China Development Bank, policy banks, state-owned commercial banks, joint-stock banks, Postal Savings Bank of China, foreign banks, non-bank payment institutions, financial dispute mediation organizations:

The Opinions of the Supreme People's Court People's Bank of China the China Banking and Insurance Regulatory Commission on Comprehensively Promoting the Construction of a Diversified Resolution Mechanism for Financial Disputes are hereby issued to you.

Supreme People's Court People's Bank of China China Banking and Insurance Regulatory Commission

 

November 2019, 11

　　

　　

Supreme People's Court People's Bank of China China Banking and Insurance Regulatory Commission

Opinions on comprehensively promoting the construction of diversified resolution mechanisms for financial disputes

 

Promoting the establishment of a diversified resolution mechanism for financial disputes is an important measure to smooth the channels for financial consumer rights relief, meet the growing judicial and financial needs of the people, prevent and resolve financial risks, and give full play to the functions and roles of people's courts and financial management departments in the modernization of the national governance system and governance capacity. In order to implement the Opinions of the General Office of the CPC Central Committee and the General Office of the State Council on Improving the Diversified Resolution Mechanism for Conflicts and Disputes, the Guiding Opinions of the General Office of the State Council on Strengthening the Protection of the Rights and Interests of Financial Consumers, and the Opinions of the Supreme People's Court on Further Deepening the Reform of the People's Courts Diversified Dispute Resolution Mechanism, the following opinions are hereby put forward on comprehensively deepening the construction of a diversified dispute resolution mechanism for financial disputes:

1. Work objectives

1. Guided by Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, fully implement the spirit of the <>th Party Congress and the <>nd, <>rd and <>th Plenary Sessions of the <>th CPC Central Committee, adhere to the party's absolute leadership over judicial work and financial work, persist in putting the alternative dispute resolution mechanism in the forefront, establish and improve a professional, efficient, organically connected, convenient and beneficial diversified financial dispute resolution mechanism, rationally allocate dispute resolution resources, protect the legitimate rights and interests of financial consumers, promote the sustainable and healthy development of the financial industry, and comprehensively enhance the people's sense of gain. Happiness, security.

2. Principles of work

2. The principle of fairness according to law. The diversified resolution of financial disputes must not violate the basic principles of the law, and must not harm the national interest, the collective interest or the legitimate rights and interests of third parties.

The principle of voluntary mediation. Fully respect the wishes of all parties and ensure that parties exercise their civil and procedural rights in accordance with the law.

The principle of efficiency and convenience. According to the actual situation of financial disputes, flexibly determine the method of dispute resolution, strengthen the in-depth application of information technology, improve the efficiency of dispute resolution, and reduce the cost of dispute resolution for the parties.

3. Work content

(1) Strengthen division of labor and coordination

3. People's courts at all levels should give full play to their judicial functions, and solidly advance the diversified resolution of financial disputes in the overall situation of vigorously promoting the construction of multiple dispute resolution mechanisms and modern litigation service systems, and realizing one-stop dispute resolution and one-stop litigation services. People's Bank of China and its branches, in conjunction with the China Banking and Insurance Regulatory Commission and its dispatched agencies, formulate overall plans and local plans for the development of financial dispute mediation organizations, and promote the establishment of a non-litigation third-party resolution mechanism for financial disputes. People's courts and People's Bank of China at all levels and their branches, the China Banking and Insurance Regulatory Commission and its dispatched agencies (hereinafter referred to as financial management departments) should take the initiative to integrate into the construction of litigation source governance mechanisms led by party committees and governments, strengthen communication and coordination with relevant departments, and resolve difficulties in the construction of diversified resolution mechanisms for financial disputes.

(2) Strengthen the establishment of financial dispute mediation organizations

4. Establish and improve financial dispute mediation organizations. As a business guidance unit, the financial management department promotes the establishment and improvement of a financial dispute mediation organization system with wide coverage, strong adaptability, efficiency and convenience. Financial management departments and financial institutions are encouraged to provide necessary office space and personnel support for financial dispute mediation organizations. Financial dispute mediation organizations should focus on optimizing the governance structure and establishing rules and regulations to improve service efficiency.

5. Strengthen the construction of mediator teams and funding guarantees. Financial dispute mediation organizations should establish and improve mechanisms for the selection, certification, assessment, reward and punishment, and withdrawal of mediators, select mediators based on neutrality, impartiality and professionalism, establish a team of mediators combining full-time and part-time work, and form a mediation expert database. Strengthen training in mediators' political literacy, professional ethics, mediation skills, and legal and financial knowledge. Mediators shall strictly abide by the confidentiality requirements of mediation, and shall not illegally disclose case information obtained in the course of performing their duties to a third party. Establish funding guarantee mechanisms, and mediators' case-handling subsidies shall make up for mediation costs such as missed work, meals, and transportation.

6. Explore the establishment of a rapid resolution mechanism for small disputes. Financial dispute mediation organizations are encouraged to introduce rapid resolution mechanisms for small disputes by signing memorandums or agreements with financial institutions. For financial disputes in which the amount of compensation is within a certain amount, the mediator may submit dispute resolution opinions in accordance with laws, administrative regulations, judicial interpretations and industry practices, and in accordance with the principles of fairness and justice. If the Financial Consumer accepts the opinion, all parties to the dispute shall accept and undertake to perform the mediation opinion. If the financial consumer does not accept the opinion, the mediation opinion is not binding on the parties and serves as an expert opinion for the parties' reference. Financial dispute mediation organizations should assess the effectiveness of the rapid resolution mechanism for small disputes, and promptly adjust the applicable amount scope and business field.

7. Establish a neutral evaluation mechanism. For financial disputes that are relatively controversial and typical, the financial dispute mediation organization may hire independent experts who have no interest to make a recommendatory assessment report based on the comprehensive consideration of the statements of the parties and the evidence materials submitted, for the reference of the parties. Financial institutions handling difficult and complex complaints may apply to the mediation institution to appoint independent experts to issue neutral assessment opinions on financial consumer disputes, using the neutral assessment opinions as a reference to negotiate with the complainant on the handling plan.

8. Promote the establishment of "one-stop" financial dispute resolution institutions. Promote financial dispute mediation organizations to provide one-stop dispute resolution services of "complaint + mediation + adjudication". On the basis of existing financial dispute mediation organizations, explore the establishment of professional financial dispute resolution institutions independent of financial management departments to improve the availability and convenience of financial complaint channels. Professional financial dispute resolution institutions undertake functions such as acceptance, transfer, mediation, and adjudication of complaints, promote efficient dispute resolution, and effectively reduce the burden on parties.

(3) Standardize work processes

9. Improve the litigation and mediation platform and the roster system of specially invited mediation organizations and specially invited mediators. People's courts at all levels should earnestly give play to the role of diversified dispute resolution mechanisms, and combine the establishment of multiple dispute resolution mechanisms with the establishment of litigation service centers. Introduce financial dispute mediation organizations and mediators into litigation service centers, and actively set up financial dispute mediation rooms in areas where conditions permit, for specially invited mediation organizations and specially invited mediators in financial disputes to carry out their work; It is necessary to establish and dynamically manage the roster of specially invited mediation organizations and specially invited mediators, and provide complete and accurate information on mediation organizations and mediators to parties to financial disputes; Explore inviting mediators of financial dispute mediation organizations to serve as people's assessors to improve the level of trial professionalism. People's courts and financial dispute mediation organizations may set up workstations for each other to strengthen two-way connection and improve the convenience and benefit of mediation services.

10. Clarify the scope of the case. Contract and tort liability disputes arising from financial business between equal civil and commercial entities may apply to the financial dispute mediation organization for mediation.

11. Implement the appointment and entrustment of mediation. In the process of accepting and hearing financial dispute cases, people's courts shall implement the policy of "giving priority to mediation and combining mediation and judgment", and for cases with a basis for mediation, follow the principles of voluntariness and legality, adopt methods such as appointment before case filing, entrustment after case filing, and invitation during litigation to guide the parties to resolve disputes through financial dispute mediation organizations.

When the people's court appoints or entrusts mediation, it shall send a letter of appointment or entrustment to the financial dispute mediation organization, and transfer the relevant materials of the case to the financial dispute mediation organization. Parties are encouraged to submit mediation applications through the people's court mediation platform (hereinafter referred to as the court mediation platform), the people's courts are encouraged to appoint or entrust mediation cases to financial dispute mediation organizations through the court mediation platform, and financial dispute mediation organizations are invited to online network mediation platforms such as "China Financial Consumer Dispute Mediation Network" (www.fcosc.org) to accept assignments and entrustment to carry out mediation work.

12. Organize mediation. Where the financial dispute mediation organization and the mediator organize mediation, and the parties reach an agreement, the financial dispute mediation organization shall draft a mediation agreement, which shall be signed and confirmed by the mediator and the parties. For cases where the people's court appoints or entrusts mediation, the financial dispute mediation organization shall promptly submit the mediation results and relevant documents in writing or through a working platform approved by all parties to the appointing or entrusting court.

If mediation fails, the financial dispute mediation organization shall inform the parties that the dispute may be resolved through arbitration, litigation or other means. Where the people's court appoints or entrusts mediation, the financial dispute mediation organization shall promptly reply to the people's court, and the people's court shall promptly register and file the case or resume trial in accordance with relevant provisions.

13. Strict time limit for mediation. In financial dispute cases appointed by the people's court for mediation, the mediation period shall be 30 days; This shall not be the case if the parties agree to extend the time limit for mediation.

In financial dispute cases entrusted by the people's court for mediation, the mediation period for ordinary procedures is 15 days, and the mediation period for summary procedures is 7 days; This shall not be limited if the parties agree to extend the mediation period; The extended mediation period does not count towards the hearing period.

The period for appointing mediation and entrusting mediation shall be calculated from the date on which the financial dispute mediation organization signs for the materials transferred by the court.

14. Application for judicial confirmation. A mediation agreement reached through mediation conducted by a mediator of a financial dispute mediation organization has the nature of a civil contract. After being signed and sealed by the mediator and the financial dispute mediation organization, the parties may apply to the people's court with jurisdiction to confirm its validity. Where mediation is appointed by the people's court and a mediation agreement is reached, and the parties apply for judicial confirmation, the people's court that appointed mediation shall accept it in accordance with law. The people's court may conduct online judicial confirmation of the mediation agreement through the court mediation platform.

Where a party's refusal to perform a mediation agreement with clear payment subjects and payment content confirmed by the people's court is valid, the other party may apply to the people's court for compulsory enforcement.

15. Make full use of online dispute resolution to carry out work. Continuously enrich and improve the functions of online mediation platforms such as the "China Financial Consumer Dispute Mediation Network" (www.fcosc.org), and promote the establishment of a "head-to-head" online litigation and mediation mechanism for financial disputes through data exchange and interconnection between the platform and the court mediation platform. Actively explore the use of information technology to improve the efficiency of specific work such as appointing and entrusting mediation, service, exchange of case materials, and judicial confirmation of mediation agreements, and facilitate parties' participation in diversified resolution of financial disputes. Financial dispute mediation organizations shall make full use of technical means to build a mediation system covering online mediation, on-site mediation, telephone mediation, and other channels, to resolve disputes efficiently and in a timely manner. Formulate and improve online dispute resolution rules, and summarize and promote practical experience such as remote mediation. Financial dispute mediation organizations strengthen the configuration of hardware facilities, implement audio and video recording of the mediation process, and realize the traces of the entire mediation process; Where people's courts need to collect relevant audio and video recordings in the course of judicial confirmation, financial dispute mediation organizations shall actively cooperate.

(4) Improve safeguard mechanisms

16. Improve the level of financial dispute resolution informatization. Establish and improve the database of typical cases of financial disputes and the database of financial complaints, deepen the sharing of judicial and financial information, and give full play to the positive role of smart courts and smart finance construction in diversified solutions to financial disputes.

17. Increase support for diversified dispute resolution mechanisms. Financial institutions shall designate specific departments to promote diversified resolution of financial disputes, and include diversified resolution of financial disputes in the performance evaluation of their financial consumer rights protection. Where financial consumers apply to use mediation to resolve disputes, financial institutions shall actively participate in mediation and cooperate with people's courts and financial dispute mediation organizations in ascertaining the facts. Financial management departments include the completion rate of financial dispute mediation into the assessment and evaluation system for the protection of consumer rights and interests of financial institutions, and guide financial institutions to strengthen their awareness of "due diligence". Where a financial institution refuses to perform on a mediation agreement reached without justifiable reasons, the financial management department and financial dispute mediation organization may publicize it through forms such as a complaint situation analysis report and a financial dispute mediation operation report.

4. Work requirements

18. Establish working groups. Local people's courts at all levels, branches at all levels of People's Bank of China, dispatched agencies at all levels of the China Banking and Insurance Regulatory Commission and local financial dispute mediation organizations jointly establish a working group on the construction of diversified financial dispute resolution mechanisms, and hold joint meetings on a regular basis to communicate the work situation, strengthen information sharing, and coordinate the mediation of major typical financial dispute cases; Evaluate and summarize the diversified resolution of financial disputes, and continuously optimize the diversified resolution mechanism of financial disputes; Focus on jointly building a financial risk warning mechanism to prevent systemic financial risks caused by individual cases.

19. Strengthen publicity and guidance. All levels of people's courts, financial management departments, and financial dispute mediation organizations should jointly increase the awareness and trust of parties to financial disputes and the public in diversified resolution mechanisms for financial disputes through various methods such as guiding demonstration cases, increasing publicity, and strengthening financial consumer education, and actively guide parties to resolve financial disputes through mediation, and rationally protect their rights in accordance with law. After receiving financial consumer complaints from branches at all levels People's Bank of China China Banking and Insurance Regulatory Commission and agencies dispatched at all levels, they shall promptly transfer them to the financial institution being complained of for handling, or transfer them to financial dispute mediation organizations to provide mediation services.

20. Strengthen the participation and recognition of financial institutions in the construction of diversified resolution mechanisms for financial disputes. Financial institutions are encouraged to establish mechanisms such as dynamic granting of mediation authority, remote grant, timely response, and rapid approval, to ensure that grassroots financial institutions can efficiently resolve financial disputes through mediation. Financial institutions should enhance their recognition of mediation agreements, and mediation agreements reached within the scope of authorization should be used as one of the bases for accounting verification by financial institutions. All levels of people's courts, financial management departments, and financial dispute mediation organizations may give commendations and publicity to collectives and individuals that have outstanding performance in the diversified resolution of financial disputes.

21. Consolidate the main responsibility of financial institutions as the first responsible person for the handling of financial disputes, reduce financial disputes from the source and strengthen the level of "litigation source governance" of contradictions and disputes by improving the level of compliance operations, optimizing financial products and services, and strengthening information disclosure in accordance with the law. Financial institutions shall publicize the internal and external dispute handling channels for financial consumer disputes and the contact information of local financial dispute mediation organizations in conspicuous positions such as business counters and official websites. When a financial institution concludes a contract with a consumer, it may agree with the other party to settle the dispute by means of mediation.

22. Strengthen supervision, guidance, coordination and management. The Supreme People's Court, the People's Bank of China and the China Banking and Insurance Regulatory Commission have established a joint conference system for diversified resolution mechanisms for financial disputes, and are responsible for planning, coordinating and promoting the construction of diversified resolution mechanisms for financial disputes. The Second Civil Trial Division of the Supreme People's Court, the Case Registration Division, the People's Bank of China Financial Consumer Rights Protection Bureau and the Consumer Rights Protection Bureau of the China Banking and Insurance Regulatory Commission established a working group on diversified resolution mechanisms for financial disputes, which is specifically responsible for guiding and coordinating the construction of diversified resolution mechanisms for financial disputes. All higher people's courts should guide, supervise, and inspect the people's courts within their jurisdictions to implement the work requirements of the diversified resolution mechanism for financial disputes. People's Bank of China branches at all levels and agencies dispatched at all levels of the China Banking and Insurance Regulatory Commission to strengthen support for diversified resolution of financial disputes, and guide and support the work of financial dispute mediation organizations. Local people's courts at all levels, branches at all levels of People's Bank of China and agencies dispatched at all levels of the China Banking and Insurance Regulatory Commission shall promptly report their work situation and problems encountered to the Supreme People's Court, the People's Bank of China and the China Banking and Insurance Regulatory Commission.