Recognition And Processing On Improper Solicitation In Financial Consumption

With the development of financial market and the excessive financial innovation, the types of financial instruments have been greatly enriched, and its structure has been increasingly complex. Driven by the huge pressure of competition and economic interests, financial institutions often conduct misleading solicitation and aggressive promotion for competitive advantage. At the same time, due to lack of professional knowledge and information, financial consumers are highly dependent on product guidance. However, with a lot of financial consumers to suffer a loss, the court often decided against the consumers just for the signing of pertinent risk description documents, causing the legitimate interest of financial consumers cannot get protection. In view of such situation, based on the analysis of the particularity of financial consumption, this article will research on the subject, object, manifestations and subjective elements of improper solicitation in financial consumption, and also on the liability for special tort of misleading solicitation and the right of withdrawal of aggressive promotion, to provide feasible suggestions for the protection of financial consumers.Besides the preface and epilogue, this article is divided into three parts.Part I – the Orientation of the Recognition and Processing on Improper Solicitation from the Particularity of Financial Consumption. Compared with traditional consumption, financial consumption has its own particularity. The serious information asymmetry in financial transactions, the limitations of understanding of financial consumers and the prominent promotional way of selling, place the consumers in a weak position with a more disadvantage. Therefore, the legal obligation of financiers should be strengthened in financial instruments selling stage, allocating the financial consumers with special protection.Part II – the Recognition on Improper Solicitation in Financial Consumption. As the improper solicitation distorts the fairness and impartiality of the transactions, it should be regulated by the law. But exceeding regulation may destroy the market efficiency. Through research on the subject, object, manifestations and subjective elements of improper solicitation, this part will try to achieve a balance between the protection of financial consumers and market efficiency. Additional, according to the identity of improper solicitation, it is divided into misleading solicitation and aggressive promotion.Part III – the Processing on Improper Solicitation in Financial Consumption. For the misleading solicitation, the foundation of right to petition of civil liability is indefinite in our country, so that the court often decided against the consumers when they request civil remedy. Therefore, it is necessary to make law to regulate the misleading solicitation. When the legitimate interest of financial consumers is damaged by misleading solicitation, the financial institutions shall be liable for the damages, and the law shall specify the distribution of burden of proof between financiers and financial consumers. As the aggressive promotion may exert undue influence on financial consumers’ genuine intention, consumers may easily make trading decisions against themselves. Therefore, it is better to empower financial consumers the right of withdrawal, so that they can reselect after the conclusion of the contract.