| Private Investment Fund,as an important product in the financial market,have achieved significant development in recent years.The investor suitability obligation of the fundraising institution in private investment fund operations,if not fulfilled,will harm the interests of investors,and the fundraising institution itself will also face corresponding administrative and civil liability,which is not conducive to the development of the private investment fund industry.Given the important impact of investor suitability obligations on fundraising institutions,investors,and the private investment fund industry,this article,based on the views of many scholars in the academic field and combined with its own practical experience in the private investment fund industry,has reviewed many private investment fund cases involving investor suitability obligations between fundraising institutions and investors,analyzed the development of investor suitability obligations in the private investment fund industry domestically and internationally;clarify the classification of private investment fund and private investment fund investors;determine that the subject responsible for investor suitability obligation is the fundraising institution,specifically including private investment fund managers and sales agents;consider the legal nature of the investor suitability obligation for private investment fund investors as a legal obligation,and its content mainly includes understanding clients,understanding products,appropriate matching,and risk disclosure;fundraising institution that violate investor suitability obligations need to assume administrative and civil liabilities,and with regards to the type of civil liability,this article believes that fundraising institution should primarily assume tort liability.;and identified disputes between fundraising institutions and investors in private investment fund operations arising from compliance with investor suitability obligations following the implementation of Minutes of the National Court Work Conference on Civil and Commercial Adjudication.Based on the judgments of relevant judicial cases,as the financial market develops,the number of such cases has been relatively large in recent years,and they are often combined with other claims;the causes of action are mostly contract disputes,but the private investment fund contracts provided by investors do not have clauses that regulate fundraising institutions’compliance with investor suitability obligations,resulting in a lack of contractual basis for such claims.In addition,different courts have different opinions on the scope and proportion of compensation for losses,especially on when losses can be determined,and show different judicial thinking in their judgments.The investor suitability obligation standard in the private investment fund industry mainly exists in the self-regulatory rules and guidelines of the Asset Management Association of China,but the courts mostly do not apply these self-regulatory rules or guidelines in their judgments,and the relevant laws on investor suitability obligations do not have specific provisions.In view of the above situation,it is suggested that investor suitability obligations be included as a necessary clause in private investment fund contracts,so that there can be contractual basis for disputes between investors and fundraising institutions;if the standard of investor suitability obligations can be elevated to the legal level,it can to a certain extent improve the protection of investors,and the court can make judgments based on the law when disputes arise between investors and fundraising institutions regarding suitability obligations;when the self-regulatory standards of the Asset Management Association of China regarding fundraising institutions’ investor suitability obligations in private investment fund operations do not conflict with higher-level laws,the court can also refer to and apply these standards in its judgments;at the same time,with the increase in cases,greater use of industry mediation can also play a better role in resolving disputes and avoiding excessive litigation. |
