论中国法下金融机构违反投资者适当性义务的赔偿依据

Abstract

The concept of the “obligation of ensuring investor eligibility” (“OELE”) was put forward by Securities Law of the People's Republic of China (2019 Revision) (“Securities Law”). However, in the case of the violation of the OELE by the financial institution (“Scenario”), there is still a dispute over the underlying legal principle/basis on which the investor could rely to request such financial institution to compensate the investor. The “liability for contracting fault”(“LCF”)is the underlying legal principle adopted by the PRC Supreme People’s Court to apply to the cases similar to the Scenario. The author believes that investors may adopt LCF as the main legal basis and adopt the statutory liabilty related to OELE provided in the the departmental regulations and judicial documents of PRC Supreme Court as the supplementary legal basis to claim compensation against various financial institutions, and only in the event of violation of OELE by scurities companies investors may adopt the security tort liability specified in Article 88 of the Securities Law as the legal basis to claim against securities companies. Meanwhile, the author advises that: since the principle of LCF is only applied to the event where an contract is unformed, invalid or be revoked, to avoid the contractual liability imposed by the contract executed together by the investor and the financial institutions under the Scenario, it is better for such investor to claim the avoidance of the contract in accordance with Article 54 of the Contract Law of the People's Republic of China，or Article 151 of the General Provisions of the Civil Law of the People's Republic of China.