| Since the 21 st century,with the financial diversification and the rapid development of financial innovation,investor protection has become a major issue in the world.At present,the development of financial diversification and globalization has posed great challenges to the protection of ordinary investors and professional investors around the world,and the present situation of highly developed financial facilitation in China has led to the rapid development of ordinary investors and professional investors.The two groups of investors showed a trend of speed differentiation,which greatly enlarged the threat to our investors and even the financial system,and increased the urgency of investor protection.Investors and financial consumers are the cross concepts.Ordinary investors are both part of the financial consumers,but also investors and professional investors as part of the relative;and financial consumers are ordinary investors,depositors,policyholders and other groups Of the set of concepts,and professional investors,strong investor category does not overlap.The so-called differentiated investor protection system is based on the investor classification system,according to the investors and financial service providers,the degree of imbalance in the ability of investors will be divided into different categories,and different trading capacity of investors to provide differentiated protection Of the system.Investor protection is a kind of investor protection system.It is an upgraded form of investor protection system.Qualified investor system and appropriateness system belong to the sub-system of investor's differentiated protection system.Differentiation of investor protection can ensure that the ability of investors to fully protect the transaction,but also to avoid the waste of regulatory resources to the maximum.From the track of development of investor protection system,almost all of the countries and regions are following the first integrated regulatory power,after the formulation of investor protection rules,the first ordinary investor protection,professional investor protection,and then the financial consumer protection traces of.The financial supervision of all countries and regions has changed the mode of supervision of the division of labor,is to unify the direction of development,in order to prevent financing facilitation leading to financial institutions business blurring the regulatory loopholes.After the reform and opening,the investor protection system of our country has experienced the stages of investor protection system exploration stage,investors protection system establishment stage and investor differentiation protection system development stage,and made great progress in investor protection level.But still does not meet the urgent needs of the current investor protection.Because of the great demand of investor protection,the research of academic theory in our country has a serious shortage of the status quo.For a long time,the range of investors studied in our academia is only limited to the stock investors in the A-share market.Very little attention is paid to the differences between ordinary investors in the Internet capital market and professional investors in the low-level capital market protection.In recent years,our scholars have made great strides in protecting the investors with the international trend and vigorously promoting the theoretical research and practical exploration of financial consumer protection.However,to solve the urgent problem of investor protection,it is necessary to study directly from the investor protection to start more operational,the only way to meet the rapid development of China's financial needs of the urgent protection of investors.It is the international practice to protect investor that divides investor into ordinary investors and professional investors,and provide differential protection for them.But how to effectively carry out effective protection,academic theoretical support is not yet sufficient: The theoretical basis of investor protection has evolved from agency theory to trust theory and then to the evolution of sign theory.Gradually,the scope and protection of investor protection theory has been solved.The connotation of investor protection has been improved.Unfortunately,the current investor protection theory can only cover the protection of investors before and during the transaction,which can not provide the theoretical support for the protection of investor's post-transaction dispute resolution.Moreover,the theory of investor protection is not theoretically Support,unable to adapt to the status of investor stratification,can not meet the different needs of different investor protection.This paper explores the balance theory of trading ability,and provides theoretical support for the design and perfection of investor protection system based on the theory of the shortage of investor protection.Transaction capacity balance theory is to guide the state how to intervene in market transactions,how to grasp the scale of investor protection theory.The ideal of freedom of contract,the transaction capacity of both trading counterparts,trading capacity balance in a state of equilibrium at this time the state without intervention.The actual transaction in the trading capacity of the two sides of the universal imbalance,the state has the responsibility to a certain way to balance the balance of the transaction capacity of the two sides.According to the trading capacity balance theory,investor protection should be the primary pursuit of financial regulation,its protection should be to restore its financial services providers and balanced trading capacity for the purpose of ordinary investors and professional investors to protect the degree of differentiation should be And the balance of trading capacity balance to adapt.The way of country Intervening in the Market is guided by the theory of balancing the trading capacity.Under the ideal of freedom of contract,the transaction capacity of both trading counterparts,trading capacity balance in a state of equilibrium at this time the state without intervention.When the actual transaction in the transaction capacity of the two sides are not equal,trading capacity balance is in an unbalanced state,the state is responsible for a certain way to balance the two sides balance of trading capacity.Transaction capacity includes three aspects: Firstly,the ability to resist risks,the investor's net worth and income of the word enough to bear the relevant investment risks.Secondly,the ability to invest,that is equal to the legal personality and trading status,with equal ability to engage in economic behavior,for the transaction object has a full understanding of ability to make rational human rational behavior,the ability to achieve their own interests to maximize.And have equal access to information on both the market environment,the market there to promote the effective allocation of resources,complete competition.Thirdly,the rights to maintain capacity.Namely the ability of investors and financial service providers to maintain their rights when their rights are violated or when disputes arise.The current financial transactions,the three trading capabilities of investors and financial services providers are unbalanced.In the first,the ability to resist risks imbalance.Financial service providers are mostly financial institutions approved by regulatory authorities,have sufficient expertise to identify risks,but also have sufficient economic strength to resist risks.And investors' financial strength is far weaker than financial service providers,and many investors are not mature enough investment strategy,easy to look aggressive,investors are difficult to judge their own dangerous state,often deep in the risk is totally unaware.In the second,the investment capacity imbalance.In the premise of full and comprehensive information sources,to make the best decision-making,need full professional quality,to match the expected financial products and investment suitability.Financial service providers' specific employees,with professional financial knowledge,and its decision-making mechanism is sound,strong decision-making ability.However,many investors only have limited rationality.Although they make investment decisions for the purpose of maximizing the interests,there are limitations in the process of obtaining and processing information,which makes it easy to make irrational decision.And ordinary investors in the presence of herding,investors tend to converge behavior,when it is difficult to judge more than most people will take the choice,the choice may not be able to meet the original investment objectives of investors,but also easy to accelerate market turmoil.In addition,the financial services provider's marketing strategy will also weaken the decision-making ability of investors.In the financial services for marketing or product promotion,to expand the market for its trading volume,increase market activity,there is to induce investors to enter the market,the driving force,to guide investors to choose financial services providers profitable large financial products,For well-designed ads and marketing strategies to persuade investors to invest in decision-making capacity can be greatly weakened.Especially when there is a conflict of interest between the financial service provider and the investor,the effect of the inducement will weaken the investor's decision-making ability.In the third,the ability to maintain the right balance.The imbalance of the right to maintain the right to break down into two categories: one is the ability to prove the imbalance,when investment disputes,the parties to the transaction in order to claim their rights,must rely on evidence to support.Financial service providers have a sound management system and operating mode,the evidence is very comprehensive,the understanding of the legal relationship is also very thorough,so the evidence ability;but the investor as a financial service provider of the other party,the law The quality of the work is not uniform,and even can not fully understand their rights,do not understand the causal relationship between the proof,although investors can hire a lawyer for their services,but the lawyer to hire a certain cost,and lawyers and investors will inevitably Some understanding of bias.The second category is the risk compensation ability imbalance.When the rights or interests are damaged or may be damaged,the financial service providers and investors have the ability to transfer risk,financial services providers have the right to speak in the transaction,which can design a mechanism to pass the risk to investors.According to the theory of balancing the trading capacity,we need to start from the root causes of imbalances in investor trading capacity to balance the trading capacity for ordinary investors and professional investors.In the financial transaction between investors and financial service providers,the imbalance of trading ability is mainly due to the weakness of anti-risk ability,investment ability and rights maintenance ability.Therefore,the balance of investors' trading ability is restored,and the optimal supervision resources are fully protected.We need to make up the above three efforts.Firstly,according to the difference of anti-risk ability between investors,investors should be protected differently through establishing the system of investor classification before the transaction.According to the common practice of the world,investors are required to effectively classify investors,the general tilt of the protection of investors.Different financial markets in the trading capacity of investors there is a difference,so the financial market classification is the prerequisite for investor classification.This paper divides the financial market into low risk market and high risk market.The investors in the two markets are divided into ordinary investors,professional investors and strong investors.They are special protection,general protection and non-protection.In low-risk financial markets,the dynamic adjustment mechanism is mainly in quasi-professional investors.First of all,do not meet the quasi-professional investors,the conditions of ordinary investors shall not be transferred to professional investors.Second,strong investors shall not be transferred to professional investors.Strong investors are mostly professional financial investment institutions,their trading capacity has been fully able to cover the financial products required capacity requirements,the parties to the transaction can be completely fair in the case of related financial products trading,so the low-risk financial market is not The need for strong investor tilt protection,should not be tilted to protect it.Again,the quasi-professional investors can be traded as an ordinary investor,but also by the application as a professional investor transactions.The investment ability of quasi-professional investors must ultimately be judged by subjective judgment,so it is difficult to ensure absolute accuracy of judgment.When the prospective professional investor considers that his trading capacity is not enough,he can not apply for becoming a professional investor,but he has to bear higher transaction costs.If his application as a professional investor enters the low-risk financial market,the financial service provider Identified,can be traded as a professional investor,enjoy lower transaction costs.In the high-risk financial market,only to meet the eligibility of qualified investors to enter the market,investors dynamic adjustment mechanism,including the general adjustment of qualified investors and professional adjustment of qualified investors.As a general qualified investor,it can not be converted into a strong investor,but may be allowed to apply to a financial service provider as a professional investor.As a result of the high risk of the financial market transaction,it should strictly control the ordinary QFII.Transformation of Professional Qualified Investors.In order to maintain the flexibility of the transaction,the QFII can have more diversified investment methods,which may be allowed to be converted into strong QFII,and may be allowed to be converted downward to ordinary QFII.The identity of each investor can be transformed under certain conditions to suit the trading needs of investors.High-risk financial markets,based on its financial product risk is definitely higher than the low-risk market,its investors should also be absolutely higher than the low-risk market,and set the threshold for qualified investors,refused to meet the standard investors into the high Risk financial market.It should be noted that the setting of the QDI should be based on the protection of the investor as the primary value and not the sole measure of the investor's net asset value as a measure of eligibility for QFII;it should also contain sufficient Investment capacity to ensure that investors in the market a smooth understanding of complex information and make effective decisions accordingly.Secondly,according to the difference of invest ability between investors,investors should be protected differently through strengthening the financial service provider's description and suitability obligations in transaction.Financial service providers' obligation of description and suitability are the two pillars to make up the investment capacity of investors.On the one hand,it is necessary for our country to explain the obligations of financial service providers,the description of the existence of two obligations,the first layer of financial service providers must be comprehensive and accurate disclosure of product information;the second layer is the financial services provider Products should be disclosed in a way that investors can understand.Countries and regions require financial service providers to undertake an investor's suitability assessment to ensure that the most appropriate product is recommended to investors.On the other hand,it is necessary for China to set up financial service providers to meet the obligations of the provisions of compliance,and require financial service providers in accordance with certain norms and strictly implement the financial regulatory requirements,otherwise investors will bear the adverse consequences of damages.If a financial service provider has made an assessment of the suitability of the investor and the conclusion of the assessment is that the target financial product does not meet the investor's investment objectives or exceeds its risk tolerance,the financial service provider must warn the investor of the risk,Its to give up the transaction,but in the end whether to continue the transaction still depends on the investor's own will.In making up the investment capacity,it is necessary to take into account the investor's own trading capacity and appropriate relief for the professional investor's obligations to the financial service providers.The extent of the obligation relief is limited to the balance of the balance of trading capacity.Thirdly,according to the difference of rights protection ability between investors,investors should be protected differently through exploring the construction of a unique investment dispute resolution mechanism after transaction.Some countries and regions set up a special dispute resolution agencies and detailed rules of the rules,these specialized dispute resolution mechanism greatly reduces the pressure on the court,which is undergoing judicial reform,and the courts are generally faced with the plight of many people in China is an important reference.China needs to increase the civil liability of financial service providers as a means of regulating the individual illegal acts of financial service providers so as to better protect the investors and effectively regulate the behavior of financial service providers.China also needs to straighten out the functions of prudential supervision and behavior supervision of financial regulators,and integrate the Financial Consumer Protection Bureau and Investor Protection Bureau of the three associations as a unified financial consumer protection committee,which is responsible for the supervision of financial service providers.;A line of three will only assume their respective areas of prudential supervision functions;and from the Consumer Protection Committee under the financial separation of independent financial advisory committee in order to ensure the neutral nature of financial consumer disputes.The financial consumption appraisal committee exercises the right of adjudication on the civil violation of the financial service provider and is responsible for seeking the mediation and settlement of the financial consumption disputes as far as possible.The organizational operation is divided into three stages: acceptance,mediation and appraisal.Of the tilt protection,in order to make up for their rights to maintain the capacity of defects.In addition,in the other dispute resolution mechanism,China needs to redistribute the burden of proof between the parties to the litigation;improve the network loan litigation case speed cut mechanism;and optimize the arbitration selection model,provides a certain amount of investment disputes,only investors An arbitration proceeding may be initiated by an ex parte application.In the follow-up construction and improvement of the investor protection system in China,it is necessary to seek a breakthrough in the following aspects.Firstly,the full establishment of investor protection system.Tilt protection for ordinary investors,efforts to improve the evaluation mechanism for professional investors,increase financial service providers to violate regulations that professional investors punishment.Secondly,improve the identification mechanism of qualified investors.The identification mechanism of QFII should take account of the ability of resisting risks and investment ability,and stipulate the clear standard of qualified investors at the legislative level to prevent the financial service providers from inducing the investors to enter the high-risk financial market which they can not bear.Thirdly,standardize the classification of high-risk financial markets,to achieve dual protection of investor differences.China's financial market reform is the first direction of the market stratification,the financial market is divided into high-risk market and low-risk market,and the implementation of high-risk market access to qualified investors protection and trading capacity to complement the double differential protection.Fourthly,the establishment of investor-specific dispute resolution procedures.A damaged investor is often involved in a large number of investors,specialized dispute resolution procedures,can achieve rapid docking with the regulatory decision to quickly respond to investor protection claims,while effectively reducing the pressure of the court case.Fifthly,to achieve the integration of financial consumer protection.In the long run,as financial innovation and development,financial products will gradually be more complex,the boundaries between the products will become increasingly blurred,and only a unified financial consumer protection institutions to meet the integration of financial products under the trend of mutual integration Financial Consumer Protection.Sixthly,the development of "differentiated investor protection law." From the perspective of the cost of financial transaction legislation,if each type of financial transaction has its own differentiated investor protection,the cost of legislation is too high and the content of overlapping is different from each other.Easily lead to confusion.On the other hand,it is feasible to separate the differentiated investor protection system."Investor Differential Protection Law," the development of at least five core elements to be included: First,the classification system for investors,the second is the financial market classification system,the third is the financial service provider product description and risk disclosure obligations,Service provider's suitability assessment and protection obligations,and the fifth is the establishment of specialized investor dispute resolution mechanism. |
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