金融机构的投资者适当性义务:实证研究与完善建议 (Investor Suitability Obligations of Financial Institutions: Empirical Research and Suggestions for Improvement)

法学评论 [Wuhan University Law Review] 2021(2) 130-143

The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-24

20 Pages Posted: 20 Apr 2021

See all articles by (Robin) Hui Huang

(Robin) Hui Huang

Chinese University of Hong Kong - Faculty of Law; 华东政法大学(East China University of Political Sicence and Law); University of New South Wales - Faculty of Law

Date Written: March 15, 2021

Abstract

Chinese abstract: 金融机构的投资者适当性义务要求金融机构向投资者销售适当的金融产品,体现“买者自负、卖者尽责”的理念,我国逐步建立起了投资者适当性义务制度,但仍有诸多不足,近来也出现中行原油宝等问题。实证研究发现,我国相关案例不多,但增长趋势明显,总体赔偿率低于海外;银行非保本理财产品和投资顾问业务的案件占比很高;原告投资者几乎全部是个人,且多为老年人。适当性义务的履行应避免形式化;应一并关注其“质”和“量”两个维度;应区分适当性义务与合格投资者制度;以合同为主界定民事责任,但发行人承担连带责任有其正当性;应完善责任减免事由,但不能以合同排除适当性义务;应以功能监管为方向统一适当性义务标准。

English abstract: Investor suitability duty of financial institutions requires financial institutions to sell suitable products to investors, which is based on the balance of the two principles of Caveat Emptor and Seller Due Diligence. China has gradually established the system of investor suitability duty, but still suffers from many problems, as evidenced by the recent case of Bank of China’s Crude Oil Treasure. There are several important empirical findings: although there are not many cases, a clear increase in the number of cases can be discerned in recent years; the overall compensation rate is lower than overseas jurisdictions; asset management products offered by the banks have a high incidence of violations; almost all plaintiff investors are individual investors, and are mostly aged persons. A formality approach should be avoided in performing the suitability duty; attention should be paid to the two dimensions of quality and quantity; the suitability duty needs to be distinguished from the institution of qualified investors; civil lability for breaching the suitability duty should mainly be contractual, and it is reasonable for the issuer to bear joint and several liability; liability-mitigating circumstances should be clearly set out, but the duty cannot be contractually precluded altogether; a functional regulatory principle should be adopted to unify the various standards for the suitability duty as applied in different financial sectors.

Note: Downloadable document available in Chinese.

Keywords: 投资者适当性义务;合格投资者;买者自负;卖者尽责;金融监管 investor suitability duty; qualified investors; Caveat Emptor; seller due diligence; financial regulation

JEL Classification: K22; G24

Suggested Citation

Huang, (Robin) Hui, 金融机构的投资者适当性义务:实证研究与完善建议 (Investor Suitability Obligations of Financial Institutions: Empirical Research and Suggestions for Improvement) (March 15, 2021). 法学评论 [Wuhan University Law Review] 2021(2) 130-143, The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-24, Available at SSRN: https://ssrn.com/abstract=3804528 or http://dx.doi.org/10.2139/ssrn.3804528

(Robin) Hui Huang (Contact Author)

Chinese University of Hong Kong - Faculty of Law ( email )

Shatin, New Territories
Hong Kong
852-39431805 (Phone)
852-29942505 (Fax)

HOME PAGE: http://www.law.cuhk.edu.hk/app/people/prof-robin-huang/

华东政法大学(East China University of Political Sicence and Law) ( email )

1575 Wanhangdu Rd.
Changning, Shanghai 200042
China

University of New South Wales - Faculty of Law ( email )

Sydney, New South Wales 2052
Australia
61-2-9385 9649 (Phone)
61-2-9385 1175 (Fax)

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