《民法总则》第125条下对投资者分类保护问题的思考——兼评《证券期货投资者适当性管理办法》

Considerations on the Classified Protection of Investors according to the 125th Issue in “General Provisions of the Civil Law”

《民法总则》第125条首次将投资性权利列入民事主体权利保护的对象,确立了民事权利保护的新标杆。在我国民商合一的立法体例下,这一规定有权利宣言的作用,但从实质民商分立的角度来看,作为民事主体的普通投资者与作为商事主体的专业投资者在知识结构、风险承受能力等方面都存在很大的差异,因此在权利保护的程度上也应有所不同。

According to the 125 th issue in ＂General Provisions of the Civil Law＂, investment right has been classified into the protected targets of civil subject right for the first time, which has set a new standard for the protection of civil rights. With our current legislation system integrating both civil and commercial laws, the regulation works as a declaration of rights. While studying with the view of nature separation between civil and commercial laws, we find there are great differences between ordinary investors as civil subjects and professional investors as commercial subjects in the following aspects, including, knowledge structure, risk tolerance, and so on. Therefore,their rights should be protected to different extents.