What is the responsibility of the seller in case of losses in bank financial management? What is the responsibility of the buyer?

　　Every reporter Liu Jiakui Every editor Liao Dan

　　Whether "mixed valuation" wealth management products will continue to be hot or flat in the future, in addition to being linked to market elements, they will always be inseparable from the core essence of financial consumers' "risk appetite".

When choosing such wealth management products, investors should comprehensively consider product investment risks, liquidity and income levels, and purchase wealth management products that match their needs.

　　At the moment when financial consumers tend to prefer low- and medium-risk products, what responsibility should the seller do if the bank encounters a loss in wealth management?

What is the responsibility of the buyer?

This is a question that many investors care about.

The following two cases, "one positive and one negative" illustrate the responsibilities and obligations of both parties.

　Case 1: Banks "sellers are responsible" and financial losses are "buyers themselves"

　　The reporter noticed that in August last year, the Intermediate People's Court of Sanmenxia City, Henan Province released a typical case: In 2018 and 2019, Zhang San conducted personal customer risk assessment questionnaires through the bank website twice.

In 2019, Zhang San signed the "Commodity Trading Agreement" through the bank's website, signed the account crude oil WTI trading business, and agreed that "both long and short transactions of account commodities adopt the margin model, the initial margin ratio is 100%, and the early warning margin ratio is 100%. 60% and the forced liquidation deposit ratio is 50%", Zhang San agreed to abide by the above agreement.

Then Zhang San paid a deposit of 200,000 yuan and started trading crude oil WTI in his account.

　　Since then, Zhang San has carried out the account crude oil WTI trading business on his own for many times.

In 2020, Zhang San's last transaction was closed.

Zhang San lost a total of more than 300,000 yuan in crude oil WTI transactions in his account.

Zhang San thinks:

　　First, the "Commodity Transaction Agreement" between the two parties violated the departmental regulations concerning financial security and market order, and was an invalid agreement.

　　Second, account crude oil WTI products are futures, not bank wealth management products.

　　The third is that the bank has not fulfilled the obligation of "seller fulfills its responsibility".

The bank was required to bear its loss of more than 300,000 yuan.

　　In this regard, the bank believes that the "commodity trading agreement" does not violate the mandatory provisions of the current laws and regulations, and is legal and valid; the account crude oil WTI product is not a futures transaction, but a financial derivative transaction type opened by major domestic banks; the bank has done its best to " Due diligence of the seller” obligation, so the bank should not bear the responsibility.

　　The court of first instance rejected Zhang San’s claim, holding that the bank had fulfilled the obligation of “seller’s due diligence” and the reason for the investment loss in this case was the normal fluctuation of the financial market, not the behavior of the bank. Zhang San should bear the “buyer’s responsibility” Responsibility.

　　After the verdict was pronounced, Zhang San refused to accept it and appealed to the Sanmenxia Intermediate People's Court.

The Sanmenxia Intermediate People's Court ruled to reject the appeal and uphold the original judgment, holding that: when the bank established this financial product in 2016, it had completed the approval procedures to the financial regulatory authority, and the signing of the "commodity transaction agreement" was the true intention of both parties, and the content did not violate the law , Prohibitive provisions of laws and regulations are valid agreements.

　　According to the agreement signed by the two parties, both long and short transactions in Zhang San’s account adopt the margin model. The initial margin ratio is 100%, the early warning margin ratio is 60%, and the forced liquidation margin ratio is 50%. The crude oil WTI product in this account does not It has the basic characteristics of leveraged trading of futures products.

　　Before Zhang San purchased the account crude oil WTI product, the bank conducted a risk assessment on the Internet for him, and the assessment result showed that the product involved in the case could be purchased. The risk warning of the agreement had been written in black and bold, which was enough to attract Zhang San’s attention.

And in March and April 2020, the bank has repeatedly issued risk reminders through the bank website.

In addition, Zhang San used the account many times to operate, and there were gains and losses.

To sum up, the bank has fulfilled the obligation of "seller fulfills its responsibility".

　　Zhang San still refused to accept it and filed an application for retrial to the Henan Provincial Higher People's Court.

The Higher People's Court of Henan Province held that the reasons for Zhang San's retrial application were untenable, and rejected Zhang San's retrial application.

　　A person from the judiciary said in an interview with reporters that there are three key points in this case:

　　One is whether the contract is valid.

According to the provisions of Articles 153 and 502 of the Civil Code, only a violation of the mandatory provisions of laws or administrative regulations can constitute a reason for the invalidation of the contract, and the conditions for invalidation are listed.

　　The second is whether the transaction type is futures trading.

The types of transactions that the bank has reported to and approved by the China Banking Regulatory Commission are legal and valid.

　　The third is whether the bank has fulfilled its responsibility, it must be judged through evidence.

　　"Financial consumers must be rational before purchasing financial management, clarify the content of rights and obligations, risk-taking methods, etc., and follow the provisions of the contract classification in the Civil Code." The person reminded.

　　In this case, the judge held that the "account crude oil WTI" product was issued by the bank online, and the trading place was obviously not a futures trading place, and it did not have the characteristics of leveraged trading, so the product was a bank wealth management product.

　　The Sanmenxia Court stated that because the financial market is highly professional and complex, it is sometimes difficult for investors to make reasonable judgments and choices even when banks have fulfilled their full disclosure obligations.

Therefore, when banks recommend and introduce financial products to consumers, they must undertake obligations such as understanding customers, understanding products, and selling or providing appropriate products to suitable financial consumers. The essence is to ensure that consumers can fully understand relevant financial products. Make independent decisions based on the nature and risks of investment activities, and bear the resulting benefits and risks.

　　The fulfillment of the suitability obligation is the main content of "seller's due diligence" and also the premise and basis of "buyer's responsibility".

If the bank has fulfilled the obligation of "seller's due diligence", the resulting losses shall be "buyer's own responsibility" by consumers.

　　Case 2: The bank recommends "leapfrog" wealth management products and fully compensates consumers for losses

　　After the implementation of the new asset management regulations, "the seller is responsible and the buyer is responsible" has become the norm in the wealth management market. Many people choose to redeem silently after losing money in wealth management products.

So, under what circumstances, the bank needs to bear the responsibility for financial loss?

　　In December 2022, according to China Consumer News, investor Wang Moumou bought a million-dollar wealth management product, but instead of making money, he lost more than 230,000 yuan.

The Shanghai Financial Court held that the Shanghai Huaihai Sub-branch of China Guangfa Bank failed to fulfill its suitability obligations when selling wealth management products to Wang, and should compensate Wang for all capital losses of 234,800 yuan, as well as corresponding interest losses.

　　Why can Wang get full compensation from the bank?

On July 15, 2016, Wang Moumou opened a wealth management account at China Guangfa Bank, and filled out a "Risk Questionnaire" in writing.

The results of the questionnaire show that Wang Moumou's risk tolerance is "stable", and he belongs to the type of investor who can bear low to medium risks.

On October 28 of the same year, Wang Moumou bought 1 million yuan of wealth management products at the business premises of Huaihai Sub-branch of China Guangfa Bank, and the purchase fee was 10,000 yuan.

However, after the product was due to be liquidated, the total amount of settlement funds received by Wang Moumou in three installments was only 775,200 yuan.

　　On April 28, 2019, Wang Moumou reported to the Shanghai Banking and Insurance Regulatory Bureau that the bank was suspected of selling wealth management products in violation of regulations.

The regulatory authority replied in June of that year that the bank had not provided the "double record" materials.

During the sales process of this product, there was an act of selling consignment products to customers that were higher than their risk tolerance, and the Bureau has taken corresponding regulatory measures.

　　After failing to negotiate with the bank, Wang Moumou filed a lawsuit with the court.

The court of first instance held that the test results of the "Risk Questionnaire" filled out by Wang Moumou and the historical records of purchasing wealth management products under his bank account showed that his risk tolerance was stable.

The wealth management products involved in the case are rated as high risk by the China Guangfa Bank's internal system.

Therefore, the Huaihai Sub-branch of China Guangfa Bank failed to fulfill its suitability obligations when selling the relevant products to Wang Moumou, and had obvious faults, and should bear the corresponding liability for damages.

Based on this, the court of first instance ruled that the bank should compensate the investor for the loss of funds of about 234,800 yuan and the corresponding loss of interest.

　　The Huaihai sub-branch of China Guangfa Bank refused to accept it and filed an appeal.

In the end, the Shanghai Financial Court rejected the appeal and upheld the original judgment.

　　The lawyer believes that the key to Wang's victory in the lawsuit is that the bank exceeded its actual risk tolerance, sold high-risk products to him in violation of regulations, and failed to fulfill its obligation of "selling appropriate products to suitable customers".

　　So, can financial consumers' previous investment experience exempt financial institutions from the suitability obligation?

　　A typical case published by the Beijing Financial Court held that this should comprehensively consider factors such as the attributes, categories, investment amounts, and investment periods of financial consumers’ previous investment in financial products, and make judgments based on whether the independent investment decisions of financial consumers have been affected.