Who is right? The first and second instance of the court gave different answers.
2 million private equity products shrink to 1.13 million
The story starts in 2015.
In the above contract, the parties have made the following agreements:
2. After the end of the six-month closing period of the fund, the opening day for subscription and redemption is the 25th day of each month;
3. The fund will exist permanently after it comes into effect, and can be terminated in advance after the consensus of all investors, managers and custodians. If the accumulated net value of the unit during the operation of the fund is equal to or less than RMB 0.8000, the fund may be terminated in advance;
4. In case of any major event that may affect the interests of the fund unitholders as stipulated in this contract, the fund manager and the fund custodian shall report in a timely manner in accordance with the laws and regulations and the relevant provisions of the regulatory authority.
In a flash, on December 22, 2017, Junxin Yingtai estimated that the accumulated net value of the fund on that day might fall below 0.8000 yuan.
On April 25, 2019, Mr. Wu redeemed all the shares of the fund through Hengyu company, an outsider. The net value of the fund unit confirmed on that day was 0.5850 yuan, and the investment amount recovered was 1.17 million yuan.
Wu later sued the court and asked Junxin Yingtai to compensate for its fund investment loss of 430000 yuan, which was calculated by the difference between the net fund value of the fund investment amount at the time of closing position and the final recovered 1.17 million yuan.
First instance: the fund manager is not responsible
In the first instance trial, the data submitted by Intime, Intime, showed that Wu had been querying the fund information from the Intime WeChat public official account for many times from July 3, 2017 to March 14, 2019 (including December 25, 2017). Wu confirmed the authenticity and legality of the evidence, but did not confirm the relevance.
The court of first instance also found the following facts:
1. Wu did not record his contact address, telephone number or e-mail and other contact information in the contract;
2. According to the fund net value table provided by Wu, the unit net value and accumulated net value of the fund have been fluctuating since its establishment;
3. The unit net value of the fund in this case on June 26, 2015 was 0.8769 yuan, and the cumulative unit value was 1.0817 yuan; on December 29, 2017, the unit net value was 0.5921 yuan, and the unit accumulated net value was 0.7969 yuan; on January 12, 2018, the unit net value was 0.6026 yuan and the unit accumulated net value was 0.8074 yuan.
The court of first instance held that the accumulated net value of a unit = the net value of the unit plus the accumulated amount of dividends paid by the unit after the establishment of the fund. Wu, as an investor of private equity fund, should have some understanding of this; the expression of accumulated net value of unit in the fund contract is not confused with the unit net value, which will not lead to any misunderstanding among the fund investors; the fund contract is about the accumulated net value of the unit during the operation of the fund If the fund is equal to or less than 0.8000 yuan, the agreement that the fund can be terminated in advance has clear meaning and no ambiguity. Therefore, Wus claim that the accumulated net value of the unit agreed in the contract is not adopted.
Meanwhile, in the case of the funds contract that does not contain contact address, telephone and e-mail, Jun Xin Intime has adopted the WeChat official account since 2017 to make information disclosure. This is consistent with common sense, and Wu has made many inquiries. The notice did not damage the actual rights of Wu, so the court held that Intime had fulfilled its duty of disclosure on the controversial matters.
As to whether RMB 0.8000 is equal to the closing line, the court held that the relevant provisions of the contract only stipulate the conditions for the early termination of the fund, and the early termination requires certain procedures. It is not agreed that the fund should terminate immediately when the conditions are reached.
The court of first instance held that Junxin Yingtai had fulfilled the obligation of notice, but Wu did not make a redemption request. It was deemed that Wu agreed to continue to hold the fund and bear the corresponding investment risk. Wus claim for compensation for its fund investment balance loss of 430000 yuan lacks facts and contract basis. The court did not support it and rejected it according to law.
The fund manager was fined 86000 yuan in the second instance
However, the case was changed in the second instance.
During the second instance trial of Guangzhou Municipal Peoples court, Wu submitted a screenshot of the website of China Securities Regulatory Commission, which showed that Beijing Securities Regulatory Bureau approved Hengyu company to carry out securities investment fund sales business on July 8, 2015, trying to prove that the sales agency on a commission basis did not have the qualification for reserve fund sales when selling fund products to Wu.
The court of second instance found that:
2. The basic situation of the parties involved in the contract is only the name and ID number of Wu. The address and telephone and fax columns are blank.
3. After inquiry, it was confirmed that the micro signal user involved in the case was not Wu;
4. Article 16 of the interim measures promulgated by China Securities Regulatory Commission on August 21, 2014 stipulates that if a private fund manager sells private funds on his own, he / she shall assess the investors risk identification ability and risk bearing capacity by means of questionnaire survey, and the investor shall make a written commitment to meet the requirements of a qualified investor; a risk disclosure statement shall be prepared and signed by the investor Confirm. If the private fund manager entrusts the sales agency to sell the private fund, the private fund sales agency shall take the evaluation, confirmation and other measures specified in the preceding paragraph. The content and format of the questionnaire on investors risk identification ability and bearing capacity and the risk disclosure statement shall be formulated by the fund industry association in accordance with the characteristics of different types of private funds; Article 41 stipulates that these Measures shall come into force as of the date of promulgation.
The focus of the second trial is whether Yingtai should pay a compensation fund unit a net value of 0.8 yuan, and the loss between the investment amount of 1.6 million yuan and the actual recovered investment amount of 1.17 million yuan.
The court held that the fund industry association only released the guidelines on the content and format of the questionnaire and the risk disclosure statement on April 15, 2016. The sale of the fund products involved in this case by Junxin Yingtai occurred before that, so it can not be used to criticize the company for failing to perform its obligations of appropriateness.
At the same time, the existing evidence can confirm that the micro signal claimed by Junxin Yingtai was not used by Wu, and because Hengyu company is a sales agency selected by Junxin Yingtai instead of Wus agent, even if the micro signal is used by the companys employees, it cant exempt Junxin Yingtai from its reporting obligation to Wu because Junxin Yingtai has already informed the agency of relevant information; similarly, Junxin is a representative company The sending of e-mail by Yingtai to the employees of the agency can not prove that it has fulfilled its reporting obligations.
The court held that Wu did not provide information such as correspondence address, which hindered Junxin Yingtai from fulfilling its reporting obligation to a certain extent;
Secondly, Junxin Yingtai did not have the fund sales qualification at that time, and did not prompt Wu as a financial consumer;
Thirdly, Junxin Yingtai did not contact Wu through the agency and asked for relevant information in order to fulfill the reporting obligation;
In addition, even if Junxin Yingtai fails to fulfill its reporting obligations, according to the evidence provided by Junxin Yingtai, Wu can still easily obtain the information of unit net value of products through various ways.
Wu, however, fails to understand the information that the net worth of the unit of the product falls below 0.8 yuan in time, which is also related to his / her failure to understand the net worth information of the fund product unit involved in the case; meanwhile, considering that Wu exercises the redemption right after he learns that the unit net value falls below 0.8 yuan, it is only a possibility, not an inevitable event, that is, the failure to fulfill the reporting obligation does not necessarily lead to Wus loss The expansion of loss.
Finally, the Guangzhou Municipal Peoples court ordered Junxin Yingtai to compensate 20% of the loss between the investment amount of 1.6 million yuan and the actual investment amount of 1.17 million yuan when the net value of the fund unit was 0.8 yuan (430000 * 20% = 86000 yuan), and the remaining losses should be borne by Wu himself.