论金融机构适当性义务的理论基础与规则完善

The theoretical basis and rule improvement of suitability duty of financial institutions

对金融机构课以适当性义务的目的,是要求金融机构在了解产品、客户的基础上,向适当的投资者推介、销售适当的金融产品,以便投资者能够在充分了解金融产品性质及风险的基础上作出自主决定。我国金融机构适当性义务规则体系存在的主要问题是理论基础不清、基本规则缺乏集中统一规定。通过实证研究发现,金融机构责任减免规则匮乏,导致实践中准确判定金融机构责任存在困难。在我国,建构金融机构适当性义务规则应以诚实信用原则作为理论基础,统一规定金融消费者与投资者的区分规则、投资者分类规则及产品评级责任规则等,并明确金融机构责任减免规则。

The purpose of imposing suitability duty on financial institutions is to require financial institutions to recommend and sell appropriate financial products to appropriate investors on the basis of understanding products and customers,so that investors can make their own decisions on the basis of fully understanding the nature and risks of financial products.The main problems of the rule system of suitability duty of financial institutions in China lie in that theoretical basis is unclear and basic rules lack centralized and unified stipulations.Empirical study finds that the lack of suitability duty relief rules makes it difficult to accurately determine the responsibility of financial institutions in practice.In China,constructing the rules of suitability duty of financial institutions should be based on the principles of good faith doctrine and the theory of informed consent,should have the unified and stipulated rules distinguishing financial consumers from investors,of classifying investors and the responsibility of product rating,and should clarify the rules of relief of suitability duty.