Distribution Of Civil Liability In Bank "Missing Order" Event

With the outbreak of the growing number of "Missing order" events, people start to focus on sales agent for financial products. More and more researchers begin to study the undertaking and distributing of the responsibility in "Missing order" events. Meanwhile, the protection of the interests of investors receives more attention. As the agents for the sale of financial products which is a kind of special product, can the rules in<Law on Protection of the Rights and Interests of Consumers> also be applied to the agents? And on this basis, should the agents take more responsibility to the investors? The purpose of this paper is to answer these questions above in a way of discussion.Firstly, the introductory section describes two domestic cases of great impact, one is "Missing order" event of Huaxia Bank, and the other is "Missing order" event of Minsheng Bank, which leading to the legal analysis of "Missing order" and the purpose of this paper.Secondly, this paper chooses the general principles of agency as a starting point, try to clarify the relationship between the agents for the sale of financial products, the product developer and the investors. And then give some further analysis of the rights and obligations between agents for the sale of financial products and investors. Presenting that as sellers, the agents for the sale of financial products, shall also be applied to the rules of joint and several obligation to investors stipulated in<Law on Protection of the Rights and Interests of Consumers>, and should bear more stringent special responsibility than the general agent. Agents for the sale of financial products are required to make special obligation to investors, which including appropriate obligation and special explaining obligation. Meanwhile the violation of these obligations will cause two special corresponding liabilities, Culpa and tort liability.Thirdly, this paper analyzes three different distributing ways of responsibility to investors between bank and staff, and they are:banks directly take responsibility for investors, banks and its employee jointly and severally take responsibility for investors, and banks take responsibility first but ultimately claim against its employee. The theoretical foundations of every possibility have been separately analyzed in this part, including duty behavior, agency by estoppel and apparent representation in the first. The second has no clear theoretical foundation, so the author describes three existing theories, and from the analysis of the existing legal provisions comes to a conclusion that the legislative trend is to require jointly and severally liable between the company and employee. The third case introduces the internal recovery relationship between bank and its employee after the undertaking of liability to the third person.Finally, the last section comes to a summary of the above, along with comments on the inappropriate solution of "Missing order" of most courts. And it also analyzes the-insufficient of the present legislation in protecting the interests of investors. At the end of last, the paper gives some suggestions from three different levels:first the legislative level, the legislature should legislate in time to fill in legislation gaps of agents’obligations and responsibilities; second bank level, banks should take measures to strengthen compliance regulatory in sales process, Strengthen the product review, establish a strict monitoring system; third the investor level, investors should be more careful and improve risk awareness when investing, and learn to identify different kinds of complicated financial products.