| In the complex and changeable financial market,financial institutions and financial consumers often have a large gap in business knowledge,experience,and information collection capabilities.In order to correct the inequality in transaction status caused by information asymmetry and restore substantial freedom of contract,the existing regulations have imposed corresponding explanation obligation on financial institutions.However,to provide practical protection for financial consumers,the existence of the obligation itself is not sufficient to achieve,and the intervention of civil liability is required to implement the relief.This thesis is composed of introduction and main text.Among them,the text is divided into the following four chapters:The first chapter briefly introduces the theoretical basis and meaning of the financial institutions’ explanation obligation,and defines the explanation obligation of financial institutions in this article as the financial institutions’ obligation to provide and explain the relevant important information of financial products sold or the financial services provided for financial consumers;Next,take the field of public offering-type asset management in which the number of cases is rapidly increasing as an example to sort out the status of the determination of civil liability for violations of explanation obligation.It is found that the court has different views on the qualitative characterization of civil liability,and the winning rate of financial consumers in such cases is not high.Even if the court finds that the institutions have violated the explanation obligation,consumers often cannot get full compensation.The second chapter is based on the different viewpoints of the court on the qualitative characterization of civil liability.Firstly,it analyzes the feasibility of determining the civil liability of the institutions by negligence in contracting.It is found that it is necessary to judge whether the institutions have the fault of violating the principle of good faith in the process of determination,which is likely to cause instability and inefficiency of the judgment,and the legal effect of the liability for negligence in contracting is the compensation of interest of trust.For cases where financial institutions violate the explanation obligation,the scope of compensation is too large,which is not conducive to the balance of interests between financial institutions and consumers;secondly,it analyzes the feasibility of determining the civil liability of the institution by the liability for breach of contract,and it is found that it is flawed in the scope of regulation.It cannot provide relief for breaches of the contracting explanation obligation and the statutory explanation obligation.In the face of a large number of homogeneous financial institutions breaching the explanation obligation,tort liability is more stable and efficient,and the scope of compensation can also achieve a better balance of interests.Therefore,in cases where a financial institution violates its explanation obligation,it is more reasonable to determine that the institution bears tort liability.The third chapter analyzes the constitutional elements of tort liability of financial institutions for breach of explanation obligation.In terms of harm behavior,there are two common forms: no explanation and improper explanation;in practice,the standards for the courts to determine whether the institution has fulfilled the obligation of explanation are not uniform,and there is also confusion between explanation obligation and suitability obligation;in addition,in practice it is generally believed that the institutions’ violation of the explanation obligation rules stated in the departmental regulations and documents is illegal and constitutes harm behavior.However,it is necessary to reflect and clarify in the legal theory.In terms of fault,law does not distinguish between illegality and fault in our country.The institution’s violation of the statutory obligation of explanation naturally indicates that it is at fault;and in the choice of imputation principle,we should insist on fault liability.Regarding the causality between the institutions’ breach of explanation obligation and the damage,court often adopts the theory of equivalent causality to demonstrate,but at the same time,there are also some judgments that ignore this element.The scope of compensation for damages should be limited to compensation for direct losses.In practice,it is usually recognized as the principal loss and the corresponding interest;and in determining the amount of compensation,the comparative negligence rule has played an important role.The fourth chapter still focuses on the constitutive elements of tort liability,and tries to put forward suggestions to improve the tort liability determination rules of financial institutions for breach of the explanation obligation.First of all,it is necessary to establish at the legal level the behavior rules of the explanation obligation of financial institutions which is oriented to financial consumers,stipulate the specific scope and requirements that should be explained,make the explanation obligations statutory,and at the same time establish and implement the identification standards of "subjective and objective combination".Secondly,special tort liability should be established,and the illegality,fault,causality and compensation amount should be presumed.The court should also continue to implement the comparative negligence rule when determining the compensation amount to achieve a balance between the interests of financial institutions and financial consumers. |
