Weigh! The supreme law is clear: no one is allowed to illegally engage in over-the-counter capital allocation

category:Finance
 Weigh! The supreme law is clear: no one is allowed to illegally engage in over-the-counter capital allocation


Among them, the Seller shall explain the cases of financial consumers rights and interests protection and securities disputes. If the seller fails to fulfill its obligations of appropriateness, it shall be liable for the financial consumers losses and compensate the financial consumers for the actual losses. If the credit transactions in the securities market are included in the scope of unified supervision by the state, no unit or individual shall illegally engage in capital allocation without approval according to law Business.

The sellers organization fails to fulfill the obligation of appropriateness, and the consumer shall be liable for any loss

The financial part includes five aspects: financial consumer rights and interests protection, securities, business trust, property insurance and bill dispute cases. The summary unifies the judgment thinking on some of the disputes.

Disputes on the protection of the rights and interests of financial consumers. According to the minutes, in the trial of civil and commercial cases caused by the sale of various high-risk financial products and the provision of services for financial consumers to participate in high-risk investment activities between financial product issuers, sellers, financial service providers (hereinafter referred to as the sellers institutions) and financial consumers, the principle of the Seller shall be responsible and the buyer shall be responsible must be adhered to, and the financial consumers shall be Whether to fully understand the nature and risks of relevant financial products and investment activities and make independent decisions on this basis as the basic facts of the case to be found out, protect the legitimate rights and interests of financial consumers in accordance with the law, and regulate the operation of the sellers institutions. If the sellers organization can not prove that it has fulfilled the appropriate obligations in accordance with the requirements of laws, administrative regulations and relevant regulatory provisions, it shall be liable for the losses suffered by financial consumers. The minutes also stipulate the burden of proof, the measurement standard of the obligation to inform and explain, the determination of the amount of compensation for loss and the reasons for exemption.

The obligation of appropriateness refers to the sellers institutions promotion and sale of high-risk financial products to financial consumers, such as bank financial products, insurance investment products, trust financial products, integrated financial management plans of securities companies, leveraged fund shares, options and other over-the-counter derivatives, as well as its participation in financing and securities lending, new third board, growth enterprise board, science and technology innovation board, futures and other high-risk products for financial consumers In the process of providing services for investment activities, it is necessary to fulfill the obligations of understanding customers, understanding products and selling (or providing) appropriate products (or services) to suitable financial consumers. The purpose of the sellers institutions obligation of appropriateness is to ensure that financial consumers can make their own decisions on the basis of fully understanding the nature and risks of relevant financial products and investment activities, and bear the resulting benefits and risks. In the field of promoting and selling high-risk financial products and providing high-risk financial services, the performance of appropriateness obligation is the main content of sellers due diligence, and also the premise and basis of buyers own responsibility.

If the sellers institution fails to fulfill its obligations of appropriateness and causes losses to the financial consumers, it shall compensate the financial consumers for the actual losses. The actual loss shall be the principal and interest of the loss, and the interest shall be calculated according to the benchmark interest rate of similar deposits issued by the peoples Bank of China for the same period.

In terms of the obligation of disclosure and explanation, the minutes make it clear that the peoples court should determine whether the sellers institution has fulfilled the obligation of disclosure and explanation according to the actual situation of the products, the risks of investment activities and the financial consumers, the objective standards that the rational people can understand and the subjective standards that the financial consumers can understand. If the sellers organization simply handwritten such contents as I clearly know that there may be risk of loss of principal by financial consumers to claim that it has fulfilled the obligation of notification and explanation, and cannot provide other relevant evidence, the peoples court shall not support its defense.

No unit or individual may illegally engage in capital allocation business

Securities disputes. According to the minutes, the role of expert witnesses should be given full play to when professional judgment needs to be made with the help of professional knowledge in other disciplines, so that the fact finding of the case conforms to the basic practices of the securities market and the generally recognized or recognized rules of experience, and the responsibility bearing matches the infringement and the degree of subjective fault, while effectively safeguarding the legitimate rights and interests of investors To realize the function of deterring illegal activities through civil liability investigation and to maintain the open, fair and just market order of the capital market. In terms of trial methods, some peoples courts have tried to combine some cases and entrust mediation on the basis of model judgment. Qualified peoples courts can choose cases to try cases in the representative litigation mode specified in Article 54 of the civil procedure law, and gradually carry out pilot work to build a securities civil litigation system in line with Chinas national conditions To accumulate trial experience and train trial team. The summary also provides for unified registration and filing, case screening and procedural review, selection of Representatives, identification of disclosure date and correction date, identification of major elements, etc. For the disputes over over over-the-counter capital allocation contracts, the minutes are clear. It is an important content to maintain the transparency and financial stability of the financial market to bring the credit transactions of the securities market into the scope of the unified supervision of the state.

Unregulated over-the-counter capital allocation business not only blindly expands the scale of credit transactions in the capital market, but also easily impacts the order of transactions in the capital market. The head of the Supreme Peoples court said that as the main trading mode of the securities market and the core business of the securities business institutions, margin trading is a financial business that is authorized by the state according to law. Without approval according to law, no unit or individual may engage in the business of capital allocation illegally. While confirming the invalidity of the capital allocation contract, the minutes also stipulate the legal responsibilities of the capital allocation party and the user.

From the perspective of trial practice, the over-the-counter capital allocation business mainly refers to the use of Internet information technology by some P2P companies or private capital allocation companies to build a financing business platform that is free from the regulatory system, connecting the three parties, i.e. the investor, the investor and the securities business department. The capital allocation companies use the secondary warehouse function of the computer software system to put their own funds Or the act of lending money to the user at a lower cost to earn interest income. The business activities carried out by these over-the-counter capital allocation companies are essentially financing activities that can only be carried out by securities companies according to law. They not only avoid the restrictions of regulatory authorities on the sources of funds, investment targets, leverage ratio and many other aspects in the margin trading, but also intensify the irrational fluctuations in the market. During the trial of the case, in addition to the securities companies that have obtained the qualification of margin trading and securities lending in accordance with the law and the margin trading businesses carried out by the clients, the peoples court shall deem the over-the-counter capital allocation contract between any other unit or individual and the user as invalid.

After the over-the-counter capital allocation contract is confirmed to be invalid, if the capital allocation party requests the user to pay the agreed interest and expenses in accordance with the over-the-counter capital allocation contract, the peoples court shall not support it. The peoples court shall not support the request of the capital allocation party to share the income of the user arising from the use of the capital allocation in accordance with the provisions of the off-site capital allocation contract.

In addition, in view of the false statements in the securities dispute cases, the summary indicates that in the process of the case trial, for the problems that need to use the professional knowledge of other disciplines to make professional judgments, we should give full play to the role of expert witnesses, so that the fact finding of the case conforms to the basic common sense of the securities market and the generally recognized or recognized rules of experience, and the responsibility bearing and infringement The behavior and its subjective fault degree match, while maintaining the legitimate rights and interests of investors, the function of deterring illegal activities is realized through civil liability investigation.

Source: responsible editor of Securities Times: Yang bin_nf4368