A Legal Study On The Civil Liability For Breach Of Propriety Obligation

The outbreak of the subprime crisis and the "mini bond" of Lehman triggered the reform of the financial market in Britain and the United States,and the appropriateness obligation was paid attention to,which balanced the relationship between financial institutions and investors.China also introduced the content of appropriateness obligation in 2005,and it has developed so far.With the implementation of the new securities law,the promulgation of jiumin minutes,and the occurrence of the event of BOC crude oil treasure crossing warehouse,the improvement of appropriateness obligation has once again entered the scope of scholars’ discussion.From the perspective of civil liability for breach of propriety obligation,this paper attempts to sort out the logic of each part of civil liability for breach of propriety obligation.From the overview of civil liability for breach of propriety obligation,this paper discusses the types of civil liability for breach of propriety obligation qualitatively,and puts forward countermeasures and suggestions to improve the civil liability for breach of propriety obligation in China.The first part is an overview of civil liability for breach of propriety obligation.The first section discusses the concept of civil liability of appropriateness obligation.It is necessary to endow investors with the basis of claim right.It also points out that there are some problems in the determination rules of civil liability for violation of appropriateness obligation: first,the rules of appropriateness obligation in China are not detailed.Second,the existing rules can not directly produce civil and private law effect on financial institutions.It also analyzes the cognizance rules of civil liability for violation of appropriateness obligation,and points out that the problems still remain unsolved in the "nine minutes of the people".The second section is the current situation and review of the rules of civil liability for breach of propriety obligation in China.It summarizes the current situation of the determination rules of propriety obligation in China.Combined with the commercial trial provisions,it analyzes the problems of the determination rules of civil liability for breach of propriety obligation in China.It discusses the specific cases of "Wang Xiang case" and "BOC crude oil treasure incident",and discusses the disputes existing in judicial precedents The focus of discussion is analyzed.The second part,combined with the theoretical results of our country,discusses the types of civil liability for breach of the obligation of propriety.The first section is to discuss the theoretical basis of the liability for breach of contract.This paper mainly demonstrates from the perspective of the core connotation of the obligation of propriety that the type of civil liability for breach of propriety is liability for breach of contract,which is more conducive to the protection of investors and the unification of the court’s ruling rules.The second section is to question the two theories of tort liability and liability for fault in contracting,and discuss their differences limitations.The limitation of culpa in contrahendo lies in the fact that the connotation of culpa in contrahendo is not the core of the obligation of propriety,and it is difficult to identify this responsibility in practice.The limitation of tort liability is reflected in the absence of explicit provisions in the law.The third part puts forward the countermeasures and suggestions to improve the civil liability for breach of propriety obligationThe first section requires a clear boundary between the attributes of public law and private law.This paper proposes to use the methods of leading to the application of public law norms and concreting the "principle of good faith" to provide private law protection for civil liability of due obligation.The second section makes clear the civil liability that the agency should bear.This paper points out the theoretical obstacles for the agency to bear the civil liability,and makes clear the legal basis for the agency to bear the liability.This paper believes that the agency can confirm that the agency should bear joint and several liability,and there is no subjective reason for no fault.The third section clarifies the exemption situation of financial institutions,which should implement the concept of "the seller is responsible,the buyer is responsible".For the occasions where the financial institutions have been responsible,the investor’s fault can offset the civil liability of financial institutions.