盈科|期刊 《商业法律动态观察》——2019年8月刊
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更新日期：2019-11-20
来源：盈科律师事务所
【立法动态 Judicial News】
背景摘要：日前，中央全面依法治国委员会印发《关于加强综合治理从源头切实解决执行难问题的意见》（下称《意见》）。
Background Information：The Central Committee for Comprehensive Law-based Governance has recently issued the Opinions on Strengthening Comprehensive Governance to Practically Resolve Difficulties in Enforcement from Source (the "Opinions").
《意见》包括5个部分，阐述了解决执行难工作的重要意义，就推进执行联动机制建设、加强和改进人民法院执行工作、强化执行难源头治理制度建设等提出具体要求。根据《意见》，要健全网络执行查控系统，建立健全查找被执行人协作联动机制，加快推进失信被执行人信息共享工作，完善失信被执行人联合惩戒机制，强化对公职人员的信用监督等。同时，加快社会信用体系建设，完善市场退出工作制度机制，完善责任保险体系等。其中，《意见》指出，扩大责任保险覆盖范围，鼓励相关单位投保食品安全责任、环境责任、雇主责任等责任保险，发挥保险制度分担风险、分摊损失作用，充分保障大规模受害人合法权益。
The Opinions, organized into five sections, first expound on the significance of resolving difficulties in enforcement, and then set out specific requirements for making progress in establishing the enforcement linkage mechanism, stepping up and improving the enforcement work of people's courts, strengthening the establishment of a system to tackle difficulties in enforcement by identifying the root cause and solution, etc. According to the Opinions, efforts will be made to improve the online enforcement check and control system, establish a sound mechanism on collaboration on locating parties subject to enforcement, accelerate the work on sharing information about dishonest parties subject to enforcement, optimize the joint punishment mechanism against dishonest parties subject to enforcement, and ramp up the credit-based supervision of civil servants. Meanwhile, actions will be taken to speed up the building of the social credit system, improve the work systems and mechanisms for market exit, and improve the liability insurance system. Among others, the Opinions call for expanding the coverage of liability insurance, encourage the related entities to take out the liability insurance in relation to food safety liability, environmental liability and employer's liability, and give play to the role of insurance in risk allocation and loss apportionment, so as to fully protect the lawful rights and interests of the vast number of victims.
背景摘要：近日，商务部发出《商务信用联合惩戒对象名单管理办法》（下称《办法》），自印发之日起施行。
Background Information：The Ministry of Commerce ("MOFCOM") has recently issued the Administrative Measures for Lists of Parties Subject to Joint Credit Punishment in the Commerce Sector (the "Measures"), immediately effective from the date of issuance.
《办法》规定：一、认定惩戒名单可依据商务领域行政处罚、行政强制或司法裁判等信息。二、名单的发布和推送：信用机构通过商务部网站、“信用中国”网站等渠道向社会发布惩戒名单，通过商务信用信息交换共享平台向全国信用信息共享平台和各级商务主管部门推送惩戒名单等。三、名单的响应和退出：各级商务主管部门依法对名单主体在直销资质、商品配额等方面予以限制或加强监管。惩戒名单主体自被列入名单之日起满半年，主动纠正失信行为、消除不良影响后，可向认定单位提出信用修复申请。惩戒名单主体具备有效期届满且未再发生严重失信行为的或认定单位准予信用修复的等情形之一的，可退出名单。
The Measures stipulate that the lists of parties subject to joint punishment may be prepared based on information about administrative penalties, administrative mandatory measures or judicial decisions imposed and rendered in the commerce sector. As to the publication and push of such lists, it is provided that credit agencies will make public the lists of parties subject to joint punishment through the MOFCOM's portal, the official website of "Credit China" or in other ways, and push such lists through the credit information exchange and sharing platform for the commerce sector to the national credit information sharing platform and to all levels of commerce authorities. With regard to responses to and exit from such lists, the Measures provide that commerce authorities at all levels will place limits over or tighten regulation of the parties on the list in respect of their qualification for direct sale and the quota of commodities, according to law, adding that a party placed on the list may apply to the authority that adds it to the list for remedying its credit status, if it has proactively corrected its discreditable practices and eliminated the adverse impacts within half a year after it is added to the list. Under one of the given circumstances, e.g. "where the duration of joint punishment comes to an end and the party placed on the list does not perform any more seriously discreditable acts during this period" or "where the authority that adds it to the list agrees with the credit remedy", the party may be removed from the list.
【经典案例 Representative Case】
Financial Consumers Misrepresented in Risk-taking Assessment Test Shall Bear the Assumption of Risk
——沈某诉甲银行金融服务合同纠纷案
——Shen v. Bank A over Financial Service Contract
金融商品的销售服务业者在提供金融服务时，应当履行金融消费者适格性审查义务，推荐与消费者自身风险等级相匹配的投资产品及服务。因金融消费者自身填写风险等级测评材料不真实，导致其购买投资产品或者接受服务不适当，其应自行承担投资风险。金融机构未就高风险产品进行充分信息披露和风险揭示的，应就投资者损失承担相应责任。
Sales of financial products shall perform the duty of eligibility review for financial consumers when provide financial service and shall recommend appropriate financial products and services to financial consumers that are aligned with their risk tolerance. Where any financial consumers purchase inappropriate products or receive inappropriate service because of providing false information in the risk-taking assessment test, they shall assume all their risk of investment. Where the finance institution fails to disclose information and risk completely, it shall bear related liability for the loss of the consumer.
2015年5月8日，经甲银行客户经理贺某推介，沈某于银行柜台申购了申万菱信基金（分级基金）499,922.50份，总额50万元。相关资料显示，沈某于2014年5月22日开立交易账户时，甲银行对其进行了风险承受能力测评。其中，沈某就“家庭年收入”勾选E项（100万元以上），就“投资经验”勾选D项（大部分投资于股票、基金、外汇等高风险产品，且有8年以上经验）。《评估问卷》测评结果显示沈某风险承受能力属于激进型，适合所有风险产品。2015年5月5日，沈某本人签字的《业务申请表》，银行打印栏显示基金风险级别“高风险”，客户风险级别“激进型”，风险匹配结果“正常”。
On May 8th, 2015, on the recommendation of He, the Customer Manager of Bank A, Shen subscribed SWS MU Fund (Structured Fund) for 499,922.50 shares at the bank counter, totaling 500,000 Yuan. Relevant data shows that when Shen opened a trading account on May 22th, 2014, Bank A conducted a risk-taking assessment test for him. Among the questions, Shen selected E (more than 1 million Yuan) for “annual household income”, and D (most are invested in high-risk products such as stocks, funds and foreign exchange, and have more than 8 years of experience). The result of the assessment questionnaire showed that Shen’s risk tolerance belongs to the “radical” category and is suitable for all risk products. On May 5th, 2015, Shen signed himself the Business Application Form, and the printed field of which shows that Fund Risk Level is “High Risk”, Customer’s Risk Level is “Radical”, and Risk Matching Result is “Normal”.
录音录像显示，客户经理贺某曾向沈某表示：“基金这个产品不像理财，理财产品到一年、到三个月、六个月肯定会有收益的。基金会有净值变化，有可能上，有可能下，一个阶段可能跌到成本以内，所以要从时间上去化解风险。”沈某向上海银监局举报后，该局答复：“未发现相关材料由他人冒签的情况……该录音录像对客户经理是否充分揭示风险由于声音不够清晰无法判断。”
The video and audio recording shows that the Customer Manager He have told Shen that, the product of fund is unlike the product of financing, which will certainly be profitable in one year, three months, or six months. The net value of fund may change and both appreciation and depreciation are possible. And it may even fall below the cost sometimes but it takes time to avoid the risks. After Shen reported to CBRC Shanghai Office no counterfeit signature was found in the relevant materials......The video and audio recording is not clear enough to decide whether the customer manager has fully disclosed the risk of the fund.”
2016年1月，申万菱信基金实施不定期份额折算，折算基准日为2016年1月11日，强行调减份额179,475.30份。2016年3月1日，沈某赎回所购买的讼争基金，余额为273,680.79元。沈某遂起诉甲银行要求赔偿其投资损失。
In January, 2016, the SWS MU Fund made a casual share conversion on the base date of January 1, 2016, and thus 179,475.30 shares were reduced without Shen’s consent. On March 1, 2016, Shen redeemed the purchased fund in this dispute and received a balance of 273,680.79 yuan. Shen then sued Bank A for his loss in this investment.
上海市虹口区人民法院于2017年7月31日作出（2016）沪0109民初25028号民事判决：甲银行赔偿沈某损失10万元；驳回沈某的其余诉讼请求。宣判后，沈某、甲银行向上海市第二中级人民法院提出上诉。上海市第二中级人民法院于2017年10月31日作出（2017）沪02民终9139号民事判决：驳回上诉，维持原判。
On July 31, 2017, the People’s Court of Hongkou District entered a civil judgment (No. 25028 [2016], First Instance, Civil, Shanghai) that Bank A shall pay Shen 100,000 yuan in damages and other requests made by Shen shall be overruled. After deliver the opinion, both Shen and Bank A appealed to Shanghai No.2 Intermediate People’s Court, which rendered a civil judgement (No. 9139 [2017], Final, Civil, No.2 IPC, Shanghai) to dismiss the appeal and affirm the original judgement.
法院认为：沈某在甲银行处开设账户，长期在甲银行处投资购买理财产品，借助甲银行客户经理的推介服务完成相关交易。甲银行向沈某提供财务分析与规划、投资建议、个人投资产品推介等专业化服务，双方构成以理财顾问服务为主要内容的金融服务法律关系。
The court holds that, Shen had opened his bank account at Bank A, and has on a long-term basis invested in financial products and performed all the transaction with the recommendation service provided by the said Customer Manger. Bank A has provided professional financial management consulting services to Shen, such as financial analysis and planning, investment advising, personal investment product recommendation, etc, thereupon the legal relation between the two parties is based.
银行作为专业金融机构推介或代销理财产品、提供金融服务时，应遵循投资者适格性原则，有义务把适合的产品或服务以适当的方式推介或销售给适当的投资者，防止将不适格的投资者不当地引入资本市场，维护金融市场的稳定。本案沈某在开立交易账户时进行了风险评估测试，评估结果为激进型客户，可以购买高风险及以下风险的理财产品。甲银行在依照评估结果确定客户类别的基础上，向沈某推介相应理财产品的行为并无不当。沈某虽对风险测评报告有异议，认为选项非本人或授意勾选，勾选内容不符合自身实际情况，但其未能提供充分证据证明相关事实。即便测评选项内容与沈某自身实际不符，沈某作为具有较高文化程度、具备长期金融理财经验的成熟投资者，应该仔细阅读并审慎签署相关协议，因自身填写风险等级测评材料不真实，导致其购买投资产品或者接受服务不适当的，应自行承担行为后果，对于自己签名确认的评估内容视为已接受认可，不得事后随意推翻。除了风险评估问卷外，沈某另签名确认的《业务申请表》、《风险揭示书》均对其作为投资者的风险承受能力等级进行了提示，沈某对此并未提出异议，即便因疏忽大意未注意，也应承担签名确认后的相关法律后果。
Banks shall perform investor eligibility review when recommended, sell financial products or provide financial services as professional financial institutions, shall bear the responsibility to, according to the features of financial products and services, recommend or sell appropriate financial products and services to appropriate financial consumers, and prevent ineligible investors from being introduced into the capital market, in order to keep the stability of financial market. In this case, when Shen opened the trading account, Bank A has conducted a risk-taking assessment test of him in which the result showed that Shen’s risk tolerance is “radical” and is eligible of purchasing financial products at high risk and below. Thus there was no inappropriateness for Bank A to recommend products with matched risk level, according to the result of assessment. Shen raised objection to the result of the assessment questionnaire, arguing that the choices were not selected by himself or that his consent are not matched with his own conditions. However, he did not provide related evidence to support his argument. And Shen shall, as a mature investor with high educational level and long-term financial investment experience, read the relevant agreements carefully and sign the relevant agreements with reasonable care, assuming any inaccuracy therein; where any financial consumers purchase inappropriate products or receive inappropriate service because of providing false materials in the risk-taking assessment test, they shall assume all risk arising from investment. The signature hereto shall be deemed as confirmation. In addition to the risk assessment, the Business Application Form and Risk Disclosure Letter signed and confirmed by Shen have all indicated the level of risk tolerance of Shen as an investor. As no objection was raised by Shen, he shall, even out of failure to perform duty of care, assume all the relevant legal consequences after signing the agreement.
甲银行代销金融理财产品负有信息披露和风险提示的义务。本案讼争基金系隐含特殊下折机制的分级基金，属于高风险等级理财产品。甲银行称客户经理在介绍推荐讼争基金时详细介绍了讼争基金并提示过相关风险，但录音录像只能证明客户经理在推荐过程中提到了基金的风险，并未详细介绍讼争分级基金的运作方式等相关信息并揭示特别的风险点，故甲银行关于已尽信息披露和风险提示义务的意见不能成立。法院酌情认定甲银行赔偿沈某损失10万元。
As the sales agent of financial products, Bank A shall incur the obligation of information disclosure and risk warning. The disputed fund in this case is a Structured Fund with special mechanism of reduction and it belongs to high-risk financial products. Bank A claimed that when its Customer Manager introduced and recommend this fund, he had introduced it in details and mentioned relevant risks. However, the video and audio recording could only prove that the Customer Manager had mentioned the risks of the fund during recommendation, but he didn’t introduce relevant information of the fund hereof in details such as its mode of operation, or disclose its special risk points. As a result, the argument that Bank A had fulfilled its obligation of information disclosure and risk warning is not strong enough. The court decided that Bank A compensate Shen 100,000 Yuan for his loss.
过去数年银行理财市场的“刚性兑付”规则，助长了部分金融消费者不理性的理财行为。随着资管新规的落地，银行保本理财的“刚性兑付”被打破。本案司法裁判在全面审查金融机构职责的前提下，强调了金融消费者“买者自负”的原则，金融机构与金融消费者在金融服务法律关系中存在专业性及信息等客观不对等性，为了弥补不对等，本案确认了“卖者有责”是前提，金融机构负有事前产品风险披露、金融消费者风险承受能力评级、产品存续期间定期披露、对金融消费者适格性管理的义务。金融机构各项义务履行到位后，金融消费者因自身原因不审慎购买，如盲目不切实际勾选风评选项、追求测评高风险等级结果、忽视已揭示的风险信息执意购买等，未能履行对自己事务应尽的注意义务，而投资风险等级与自身风险承受能力不匹配的产品，应由金融消费者对理财损失负责。本案体现了现代金融交易的诚信原则与契约精神，有利于金融机构回归“受人之托、代人理财”的健康发展轨道，防范金融风险。
Over the past few years, the so-called “rigid payment” in the banking financial market has contributed to the irrational behaviors of some financial consumers. With new regulations on capital management coming into effect, the practice of “rigid payment” with expected return from the banks has been broken. On the premise of a comprehensive review of the responsibilities of financial institutions, the judicial judgment herein emphasized the principle of “caveat emptor” of financial consumers. What’s more, there are objective asymmetries, such as in professionalism and information, between financial institutions and financial consumers in the legal relationship of financial services. In order to compensate for the asymmetries, the case confirmed that “the seller is responsible”. As a result, financial institutions are obligated to disclose product risks beforehand, to assess financial consumers' risk tolerance, to periodically disclose products during their lifetime, and to manage financial consumers' eligibility. When the obligations of financial institutions have been fulfilled, if financial consumers do not purchase prudently for their own reasons, such as blindly and unrealistically select assessment options, pursuing the results of high-risk rating, ignoring the disclosed risk information and insisting to purchase the products, and they fail to fulfill their due duty of care to their own affairs, but to invest the products whose risk rating do not match their own risk tolerance, they should be responsible for financial losses. This case embodies the principle of good faith and the spirit of contract in modern financial transactions, which is conducive to financial institutions’ return to the healthy development, “be entrusted by someone to manage their property”, and prevent financial risks.
本文版权归作者所有，对于本文有任何意见或者建议，欢迎和作者取得联系。沈彦炜，全球合伙人，邮箱：shenyanwei@yingkelawyer.com
All right reserved. If you have any suggestion, please feel free to contact me. Sean Shen, Global Partner, E-mail: shenyanwei@yingkelawyer.com
