| Investor suitability obligation originated in the field of American Securities Law in the last century.At first,it was just an industry self-discipline standard,gradually developed into regulatory rules,and then rose to the level of legal norms.With the enhancement of China’s awareness of financial risk prevention and control,the investor’s appropriateness obligation has developed rapidly in China.At present,China has preliminary established the rule system of investor’s appropriateness obligation.However,due to the late start of the obligation of appropriateness in China,there are still some problems in China’s system of obligation of appropriateness,such as weak theoretical basis,unclear nature and unclear connotation.In addition,there are great disputes about the civil liability for violating the obligation of appropriateness.With the continuous innovation of China’s financial market,it is bound to put forward higher requirements for financial institutions to bear the obligation of appropriateness.Therefore,it is necessary to deeply study the obligation of appropriateness of investors in China,Build a localized investor suitability obligation system in China.The appropriateness of foreign investors is mainly based on agency theory,signboard theory and special situation theory.These theories have a deep theoretical foundation in countries with common law and equity as the main content.Although they are reasonable,they are not fully suitable for China’s legal tradition.The principle of good faith has a long history in our country,has a deep theoretical foundation,and plays a leading role in the whole civil field.Therefore,the principle of good faith can be taken as the theoretical basis of appropriateness obligation in our country.The obligation of appropriateness essentially belongs to the category of fiduciary obligation.In the process of trading financial products and services,financial institutions and investors have established a fiduciary relationship.Financial institutions have advantages over investors in the fiduciary relationship,which is essentially in the position of trustee,while investors are in the position of weak principal.Fiduciary obligations not only aim to prevent financial institutions from damaging the interests of investors by virtue of their advantageous position,but also require financial institutions to fulfill their duties in order to maximize the interests of investors.The behavioral elements of investors’ appropriateness obligation in China mainly include three parts: understanding products,understanding customers and appropriateness matching.Financial institutions and their staff should fully understand the characteristics of financial commodities,which is not only the internal requirement of investors’ appropriateness obligation,but also the inevitable logic and due meaning of commodity trading.Although different countries have different regulations on investor information that financial institutions need to know,it usually includes investors’ personal information,property status,investment knowledge,investment experience,investment objectives,personal risk preference and risk tolerance.Financial institutions should be cautious when understanding investor information and pay attention to protecting the obtained investor information.Appropriateness evaluation mainly includes the appropriateness of transaction purpose,risk,knowledge and experience,financial status and continuous appropriateness evaluation.On the identification of the nature of civil liability for breach of the obligation of appropriateness,we should pay attention to the different understanding of the nature of the obligation of appropriateness,which directly affects the assumption of civil liability of the obligation of appropriateness.In essence,the obligation of appropriateness belongs to the obligation of faith.If a financial institution fails to perform the obligation of appropriateness or improperly performs the obligation and causes losses to the investor,it shall be liable to the investor.The liability shall be mainly based on the liability for contracting fault and adopt tort liability.The specific performance is as follows: Taking the conclusion of the sales contract of financial products as the boundary,if the damage occurs before the conclusion of the contract,the financial institution shall bear the liability for contracting fault,After the conclusion of the contract,if the financial institution causes serious losses due to its failure to perform its continuous and appropriate obligations,it shall bear tort liability.With the rapid development of China’s economy,the capital market has become increasingly active,and new financial products have sprung up,which is bound to put forward higher requirements for the appropriateness obligation of financial institutions.Therefore,it is the due meaning of the times to study the appropriateness obligation of Chinese investors and build a localized investor appropriateness obligation system in China. |
