A Study On The Bank's Obligation To Inform In Commercial Bank's Financial Products

Commercial bank financial products means that,the bank signs a financial contract with the customer,and manages the customer's funds in accordance with the contract.The legal nature of this financial innovation results is controversial.This article explores its legal nature according to the law and the method of interest measurement.The part which guarantees the the principal and income is defined as nameless contract,the other part is defined as trust relationship.Because of the professionalism,complexity and innovation of financial activities,there is a serious imbalance between the information held between commercial banks and ordinary customers,which limits the role of the basic principles of traditional civil law.In addition,from the perspective of law and economics,the bank's obligation to inform can prevent the market failure through low transaction costs.Therefore,this is important to maintain social equity and efficiency.However,in practice,commercial banks sell and manage financial products often do not perform well notice obligations.Moreover,China's financial legislation is more concerned about the bank's administrative responsibility and criminal responsibility.Finally,in judicial practice,bank financial product disputes often occur.Therefore,this article hopes to sort out the current law to maximize the content of the obligation:First,the provisions of the contract law.The obligation to inform is the specific form of the accompanying obligation and the requirement of the format contract.But the specific content of the obligation to inform need to be determined by the specific circumstances.The format clause of the contract law does not take the particularity of the financial contract into account.So,it is difficult to meet the actual needs.Second,the provisions of the Trust Law.Firstly,The emergence and development of trust itself is not the result of rational system design.This article does not entangle the nature of the definition and analyze the obligation to inform according to the law directly.Secondly,this paper holds that the trust is effective through the measure of interest.Finally,the provisions of the Act,compared to the contract law,is more targeted.The law can better protect the interests of customers.However,the overall is still general,abstract,not comprehensive.Third,the provisions of the Consumer Protection Act.First of all,whether the customer is a consumer is controversial.In this paper,through the interpretation of the purpose of the legislation,the consumer should conclud the customer.However,professional investors with strong risk tolerance and knowledge experience do not belong to consumers.Second,the law stipulates that the bank must bear the obligation to inform.This reflects the special protection of consumers.Although the provisions of the law are more specific than the previous two,but still there are deficiencies.Fourth,the provisions of departmental regulations and departmental normative documents.The provisions of this section are more targeted and operable than other laws,but do not have legal status.On the one hand,it can be written through the financial contract and play an individual normative role.On the other hand,it can be used as an important reference for the court referee.Finally,this paper analyzes the civil consequences that the bank should bear when the bank violates the obligation to inform:First,the analysis of the situation of judicial decisions.The dispute focused on the sales stage.After the bank violates the obligation of notice,the customer requests the cancellation of the contract on the basis of the major misunderstanding.The court's understanding of the major misunderstanding is not uniform and there are deficiencies.Banks rely too much on surface evidence.And,the court asked the customer to bear the heavier duty of their own attention.This article does not collect the cases which the customer sues During the duration of the contract.Second,this paper analyzes the possible civil liability.First,may constitute fraud.Pure silence may also constitute fraud because of the obligation to inform.If the fraud is established,the customer has the right to cancel the contract.The bank may also need to compensate for the loss,but does not bear tort damages.In addition,punitive damagesare not applicable here.Secondly,mayconstitute a major misunderstanding.When the customer concludes the contract,the misunderstanding of the risk is of a wrong nature.As to whether the error is significant,this article refers to the German judging criteria.For the issue of compensation,no fault liability should be used.If the bank is not in good faith,the customer can be exempted.When the first two competing,the customer has the right to choose freely.Then,may bear the responsibility of contracting negligence.If the elements meet the requirements,the bank needs to compensate for the loss of interest.If the customer has a fault,bank's liability can be reduced.Finally,it may constitute an incomplete performance.The customer may require the bank to inform the obligation.