Who is the reason? 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:
1. The fund manager Jun Xin Yingtai reminds investors of the principle of buyers own responsibility in fund investment. After making investment decisions, investors should bear the investment risks caused by changes in the funds operation status and net value of the fund;
2. After the end of the six-month closing period, the opening day for subscription and redemption is 25 / 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:
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.
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.
1. Hengyu company did not obtain the fund sales qualification when it sold the private fund products to Wu;
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 and confirmation, the user of the micro signal involved in the case is not Wu Mou;
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 dispute in the second instance was whether Junxin Yingtai should compensate Wu for the loss between the investment amount of RMB 1.6 million and the actual investment amount of RMB 1.17 million when the net value of fund unit was 0.8 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.
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.
The court of second instance held that Junxin Yingtais failure to perform the reporting obligation in accordance with the contract hindered Wus right to redeem the fund products in a timely manner, but Wu also failed to perform the obligation of assistance to cooperate with Junxin Yingtai in fulfilling the above-mentioned obligations. Therefore, both parties have different degrees of fault and should bear corresponding responsibilities.
The failure of Wu to timely understand the information of the unit net value of the product falling below 0.8 yuan is also related to his laziness in understanding the information of the unit net value of the fund product involved in the case. At the same time, considering that Wu exercises the right of redemption after learning that the unit net value falls below 0.8 yuan, it is only a possibility, not an inevitable event, that is, the failure to perform 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. Editor: Lian Yang source: China Foundation news Author: Chu Shen, editor in charge: Zhong Qiming_ NF5619
The failure of Wu to timely understand the information of the unit net value of the product falling below 0.8 yuan is also related to his laziness in understanding the information of the unit net value of the fund product involved in the case. At the same time, considering that Wu exercises the right of redemption after learning that the unit net value falls below 0.8 yuan, it is only a possibility, not an inevitable event, that is, the failure to perform 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.