证券法中适当性义务的解释论——以《证券法》第88条为中心

On the Interpretation of the Obligation of Appropriateness in the Securities Law——Focusing on Article 88 of the Securities Law

新《证券法》第88条规定了证券公司的了解义务、说明义务、匹配义务.但是,第88条的规则内容庞大、体系复杂,如果没有明确的适用标准对于其功能发挥而言将会产生巨大的障碍.该条应当定位于保护投资者利益,其功能中所具有的维护证券市场秩序的功能应当服从于保护投资者利益的要求.并在此前提下,将了解义务作为说明义务与匹配义务的前提,将说明义务与匹配义务作为两个互相独立的义务,从而构筑起清晰的适用标准,使第88条真正成为保护投资者利益的利剑.

Article 88 of the new Securities Law,explicitly stipulates that securities companies should have obligations to have a full understanding of the basic situation and the capacity of investors(the duty to know),to truthfully explain the important contents and investment risks of their securities and services(the duty to explain),as well as to screen investors whose situation compatible with their securities and services(the duty to match).However,the rules of Article 88 are huge in content and complex in the system,and if there is no clear applicable standard,it will create obstacles to its function.The author is of the view that Article 88 should be set to protect the interests of investors,and that the function of maintaining the order of the securities market in Article 88 be subordinated to the purpose to protect the interests of investors.On this premise,the duty to know should be treated as the precondition of the duty to explain and the duty to match,and the duty to explain and the duty to match should also be set as two independent obligations.This approach would frame a clear standard for application of Article 88,making this rule an important tool to protect the interests of investors.