Research On Contracting Explanation Obligation Of Financial Institutions

Under the background of mixed management and financial innovation,the financial commodity(service)transaction becomes more complex,showing a high degree of professionalism and technical.Compared with the traditional civil transactions,it is difficult for the majority of financial consumers to completely understand the relevant significant information about the contract,seriously affecting their will of contracting,causing the inequality status of the two side substantive are inequality.However,financial transactions are in fact private law behavior between the equal subjects.The equal environment is a prerequisite for guaranteeing the free will of the buyers and sellers.The free and accordance of the expressed intention is the necessary prerequisite for the establishment and validity of the contract.Therefore,in order to maintain the legitimate interests of financial consumers,and the both sides can be actually equal to make a choice,the financial institutions need to take the initiative to assume explanation obligation in the contract process.Then we may ask what the contracting explanation obligation rule contains and how to build the legal relief system?This article focus on the contracting explanation obligations of financial institutions,based on the private law between financial institutions and financial consumer equality relationship,analyzed the necessity and legitimacy of this obligation.On basis of the extraterritorial experience and the judicial practice in our country,this article has been clear explained the specific rules of financial institutions to the contracting explanation obligation,and finally,on the basis of the theory research,probes into the contracting rules of explanation obligation in violation of the construction of the relief system,including the contract cancellation and tort liability of civil compensation.Exceptfor the introduction and conclusion,this article is divided into five parts:The first part is the overview.Firstly,it describes the background and legal conceptof contracting explanation obligation,and points out that the obligation can be adjusted by the civil law on the basis of the financial transactions of legal relationship between equal subjects,then the obligation subject scope of financial institutions and financial consumer protection object recognition was studied,and finally the contracting obligation and the suitability principle has been compared the analysis of information disclosure system,the legal concept and function of the contracting explanation obligation has been further clarified.The second part for building financial institutions contracting legitimacy basis of explanation obligation.It introduces the contracting obligation in civil law,theoretical basis of consumer protection laws and requirements,namely the contracting explanation obligation deriving from the civil law principle of good faith.The purpose is to urge advantage party honest told that anffect the contracting intention matters;On the other hand,with the development of consumer protection movement and the rise of related laws,it also becomes a major requirement for the contracting parties to explain the obligations in the civil law.It emphases the protection of financial consumers' right to know.In addition,this article also explains to the boundary of the financial consumers' rights and interests protection,clearly this protection is a necessary condition of the contracting required or the environment,and the risk of non-financial goods itself.The third part includes the rules of explanation obligation for financial institutions.Mainly based on foreign experiences,on the basis of availability and understandability of principle,this part introduces the important items in the contracting explanation obligation,including content and implementation.The fourth part is the rules of the contracting explanation obligation violation and contract effectiveness.The explanationof obligation violation and contract effectiveness issues have been studied.It is considered that the contracting explanation obligation violation constitutes fraud,express or implied,should belong to the contracts which can be cancelled.With the lack of related law regarding implied fraud,moderate fraud"intentionally" requirement should be considered and the fraudulent party do not tally with the expected deal.The fifth part includes the construction of explanation obligation system of civil liability for financial institutions.On the basis of claim,through the analysis of the contracting fault liability and tort liability,combined with the financial transactions of a particular situation,establish no-fault liability claims,at the same time using the rules of the onus profaned inversion,problems of punitive damages have been discussed.Finally,this chapter also points out the financial consumers in commenting on the path of the private law relief.