| The combination of traditional investment advisors and digital technology has led to the development of robo-advisors.Robo-advisor refers to the use of artificial intelligence technology,through the application of big data and algorithm computing,combined with investors’ personal economic conditions,investment objectives,risk tolerance and other factors,according to the modern asset portfolio theory,to make portfolio recommendations to investors,or according to the investor’s entrustment for asset management.Compared with the traditional investment advisory business,robo-advisors have both inheritance and breakthroughs.It has shown a strong momentum of development and huge development potential in terms of boosting the development of the digital economy and meeting the needs of investors for financial services,but it has also brought new risks and challenges to financial security.These highlight the necessity and urgency of robo-advisory legal regulation.Focusing on the key elements of robo-advisory legal regulation and starting from the exposition of practical necessity,this study puts forward the basic concepts and basic principles that need to be followed in the legal regulation of robo-advisors in China,and discusses and constructs the market access mechanism,regulatory mechanism and accountability mechanism in the three operational stages of pre-event,ex-post and post-event respectively,in order to provide theoretical support and countermeasures for the legal regulation of robo-advisors.With the rapid development of artificial intelligence technology and the complexity and changeability of the financial market,robo-advisors,as the product of the integration of modern financial technology and traditional investment advisory services,have brought new opportunities and challenges to the financial market and investors.Robo-advisors are a new engine for the development of the digital economy,a product of the global financial technology revolution,and an important force to cope with the challenges of the financial technology revolution.Robo-advisors can enable more ordinary investors to enjoy professional investment advisory services by lowering service thresholds and improving service efficiency,and play an important role in promoting the development of inclusive finance.At present,the development of robo-advisors in China is still in its infancy,facing problems such as low market maturity,imperfect legal norms,and lack of regulatory mechanisms,so the establishment and improvement of the legal regulatory framework for robo-advisors is an important prerequisite for promoting financial innovation and protecting the rights and interests of investors.Robo-advisors themselves have broad market prospects and inherent risks and hidden dangers,such as information asymmetry,conflicts of interest,etc.,and also need to establish corresponding regulatory mechanisms and legal norms to promote the healthy development of the industry.Robo-advisors are a new engine to boost the development of the digital economy,a product of the global financial technology revolution,and an important force to cope with the challenges of the financial technology revolution.In addition,robo-advisors play an important role in promoting the development of inclusive finance,which can enable more ordinary investors to enjoy professional investment advisory services by lowering the service threshold and improving service efficiency,thereby promoting the development of inclusive finance.To achieve this goal,it is also necessary to ensure the quality and fairness of robo-advisory services through effective legal regulation.In the legal regulation of robo-advisors,it is necessary to take into account not only the particularity and complexity of robo-advisors,but also the universality and generality of robo-advisors.It is necessary not only to meet the needs of regulation,but also to promote the development of the industry;It is necessary not only to protect the rights and interests of investors,but also to guard against systemic risks.Therefore,the basic concepts of robo-advisors include the concept of parallel constraints and incentives,the concept of combining principle-oriented and rule-oriented,the concept of organic unity of hard constraints and soft constraints,and the concept of norm-first and inclusive attempt compatibility.The parallel concept of constraints and incentives is reflected in seeking a balance between regulation and market incentives;the combination of principle-based and rule-based approaches requires a rule-based approach in areas involving significant risks and protection of interests,while a principle-based approach is adopted in specific operational processes and business technical handling levels;the organic integration of hard constraints and soft constraints emphasizes the combination of flexibility and practicality;the concept of normativity first and inclusive experimentation compatibility proposes adopting different strategies based on different practical situations,with clear legal support and a commitment to exploring practices that balance norms and inclusivity.Under the guidance of these concepts,the basic principles of robo-advisory legal regulation are abstracted to guide the establishment of specific rules,including the principle of priority for the protection of investors’ rights and interests,the principle of proportionality,and the principle of priority for civil remedies.The principle of giving priority to the protection of investors’ rights and interests emphasizes ensuring fair transactions between investors and service companies in robo-advisory services,establishing a fiduciary obligation system,and preventing service companies from taking advantage of their dominant position to infringe on investors’ rights and interests;The principle of proportionality,which states that the means of legal regulation must be consistent with the purpose of regulation,maintain flexibility,and ensure predictable and controllable costs;The principle of priority of civil remedies advocates giving priority to resolving disputes through private law means such as civil litigation,respecting the will of market entities,and stimulating market vitality.These philosophies and principles are designed to promote the development of robo-advisors while ensuring the safety and fairness of financial markets.Under the guidance of concepts and principles,the adoption of appropriate legal and regulatory measures is the key to the sound development of the robo-advisory industry.As an innovative product that integrates the complexity of artificial intelligence and the financial field,robo-advisors have broken through the service model of traditional investment advisors,and legal regulations need to be more systematic and refined to adapt to their particularities.Market access is the first threshold set by the regulator for robo-advisors.First of all,the market access mechanism should ensure that only institutions that meet certain qualifications and conditions can provide robo-advisory services,so as to protect the interests of investors while maintaining healthy competition in the market.Therefore,the formulation of reasonable market access standards can not only prevent market chaos,but also avoid inhibiting the innovation and development of the industry due to excessively strict requirements.China’s robo-advisory regulatory entities should abandon the current overly strict regulatory measures,and improve the relevant regulatory mechanisms in an orderly manner in subsequent regulatory practice by putting forward the most basic normative requirements.Second,the core content of the robo-advisory market access mechanism should include clear regulatory targets and sound normative requirements for market access.In terms of clarifying the targets of supervision,it is necessary to refine the definitions of key roles such as robo-advisory service companies,developers providing algorithmic services,and actual controllers of robo-advisory service companies.At the same time,sound normative requirements for market access include requirements for setting minimum registered capital,qualification management,internal control compliance and actual controller qualifications,etc.,which aim to form a comprehensive regulatory framework covering securities business and non-securities business,and provide clear legal norms and operational guidelines for financial innovation services such as robo-advisors.In addition,the establishment of a technical guarantee mechanism is of great significance to solve the "technical black box" problem in the field of robo-advisors and balance technical transparency and confidentiality.The technical asymmetry of robo-advisors will create technical barriers,exacerbate the problem of information asymmetry,and amplify the hidden danger of infringement of investors’ rights and interests.Excessive disclosure of core algorithm information will damage the core competitiveness of robo-advisors,and even cause the "herd effect" to bring market chaos.In addition,clarifying the technical requirements for robo-advisory market access and providing principled guidance on the basic technical capabilities necessary for the normal operation of robo-advisory service companies can not only ensure the accuracy and fairness of robo-advisory services,but also effectively manage and control operational risks.After the market access of robo-advisors is effectively supervised,it is also necessary to establish and improve the corresponding regulatory mechanism to ensure the legitimacy of robo-advisors in the operation process.The basic logic of establishing this mechanism is to clarify the rational allocation of "residual legislative power" and ensure the rational allocation of financial product risks.On the issue of the rational distribution of "residual legislative power",the allocation of power between the regulatory body and the judicial authority has become a core issue due to the suboptimal state of the incompleteness of the robo-advisory existence law.The strong negative externalities inherent in robo-advisors often lead to the "failure" of passive judicial remedies,which requires regulators to play a more active role.At the same time,robo-advisors have the characteristics of artificial intelligence and the complexity of the financial market,which determines the high institutional cost of active law enforcement,and then determines the important position of civil remedies.In terms of the rational allocation of financial product risks,it is unrealistic for any financial product to completely avoid risks,and both providers and users of robo-advisory services must find a balance between innovation and risk,and uphold the principle of "taking into account development and security".In this process,the risk dichotomy of risk society theory provides a value selection framework for robo-advisory regulation,distinguishes between "risks" that can be avoided through reasonable regulation and "risks" that must be socially allocated and handled,and points out the importance of regulators in preventing risk diffusion.Under these basic logics,in order to effectively deal with the regulatory challenges brought by robo-advisors,on the one hand,the role of regulatory entities should be clarified,and the supervision of robo-advisors not only requires regulatory entities to play multiple roles,which is not only the constructor,observer,and maintainer of industry development,but also requires the integration and cooperation between regulatory entities.In addition,due to China’s separate supervision model,it is difficult to cope with the cross-domain characteristics of robo-advisors.Therefore,it is the key to achieve effective supervision by promoting the joint supervision of the State Financial Supervision and Administration and the Securities Regulatory Commission and other regulatory agencies,clarifying their respective responsibilities,and effectively covering the whole chain of robo-advisory business.At the same time,the concept of collaborative governance emphasizes the importance of self-regulatory organizations in the regulatory system,and through the establishment of self-discipline conventions and codes of conduct,it not only strengthens the norms and self-supervision within the industry,but also enhances the industry’s sense of social responsibility and credibility.On the other hand,the regulatory content of robo-advisors should be reconstructed.It is necessary to construct a synchronic regulatory procedure with algorithms as the core to ensure the reliability,rationality and possibility of algorithms.Establish regulatory procedures that fully respect the will of market entities,strengthen the protection of the rights and interests of financial consumers,and respect the subjectivity of investors and the independent choice of the market;Establish a regulatory procedure that strictly implements the protection of personal information,and realizes the socialization and dispersion of risks related to robo-advisors,and socializes and disperses the risks related to robo-advisors through liability insurance and investor protection funds.In addition,the relevant technologies of robo-advisors should also be included in the supervision,so it is necessary to clarify the technical positioning of the regulatory content and the full application of regulatory technology in the regulatory mechanism.In terms of technical positioning,it is possible to build a digital regulatory protocol and use new technologies to digitally interpret and embed regulatory requirements,so as to improve the efficiency and transparency of supervision and reduce compliance costs.In terms of the full application of regulatory technology,regulatory sandbox technology can be introduced,which not only provides a risk-controllable testing environment for fintech products and services,promotes financial innovation,but also ensures the stability of financial markets and the protection of consumer rights and interests,which is an important step towards the modernization of digital rule of law and financial governance.After the legal regulation of robo-advisors through the ex-ante market access mechanism and the ex-ante regulatory mechanism,the last and most important legal regulation is the accountability mechanism.The origin of the responsibility is the breach of the fiduciary duty.There is a special fiduciary relationship between the operator of the robo-advisor and the investor,and the fiduciary obligation brought about by this fiduciary relationship is the premise for the establishment of civil liability.The fiduciary duty of robo-advisors reflects the requirements for the protection of the interests of beneficiaries,i.e.,investors,and includes not only the duty of loyalty and diligence,but also extends to the obligation of information disclosure.This obligation requires that the rights and interests of investors are fully protected,and although China has a basic framework in the Civil Code,the detailed regulation in specific areas of robo-advisors is still insufficient.It is of great significance to learn from the "induction clause" model in financial supervision and explain and regulate the fiduciary obligations of robo-advisors in detail through normative documents,so as to meet the needs of fintech development.In terms of the division of the civil liability of robo-advisors,it involves three parties: investors,service platform operators,and algorithm developers.Under the current technical and legal framework,the AI platform itself is not suitable as an independent subject of civil liability.The liability relationship in robo-advisors becomes complex and diverse due to the fiduciary relationship,in which there is liability for breach of contract between the operator and the investor based on the entrustment contract relationship,the technology development contract relationship is formed between the operator and the R&D,and the tort liability may be borne by the R&D and the investor due to product quality problems.In order to ensure the effective implementation of responsibility,it is particularly important to establish a penetrating accountability mechanism,which not only requires the fairness and traceability of algorithmic decision-making,but also involves the clarification of the principle of attribution,the specific implementation of law enforcement accountability,and the strengthening of judicial accountability.In principle,the approach of fiduciary duty should be adopted,and the investor’s burden of proof should be simplified,and only the damage caused by the breach of fiduciary duty should be proved.In terms of law enforcement and accountability,regulators are required to unswervingly protect the rights and interests of investors within the scope of their responsibilities and provide adequate support and assistance when necessary.In terms of judicial accountability,taking into account the particularity of the financial market and the relatively weak position of investors,it is recommended to appropriately reduce the burden of proof on investors,such as reversing the burden of proof,lowering the standard of proof,and strengthening the role of the court in guiding and assisting the presentation of evidence,so as to ensure the fairness,justice and healthy development of the financial market.In conclusion,the legal regulation of robo-advisors aims to provide a favorable legal environment for the development of fintech,while protecting the rights and interests of investors and ensuring market fairness and transparency. |
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