Case introduction
On April 1, 2015, Wang invested 1.8 million yuan to subscribe to fund products under a fund company, and signed the "Fund Contract", " Supplementary Agreement " and "Qualified Investor Confirmation Letter" on April 15. The fund product was established in April 2015 and has a continuation period of 2 years. All funds are used to invest in A-listed Company on the New Third Board. At the end of 2017, Company A was terminated from its stock listing. Before delisting, the fund product held 50 million shares of Company A, with a shareholding ratio of 0.54%.
In mid-2018, the fund company issued a notice that according to the fund contract, relevant supplementary agreements and consultation agreements, the fund used the average monthly transaction price of Company A in the month when it was delisted as the fair price of . Based on this calculation, the remaining value of the investment principal is less than 20%. Investor Wang sued the fund company to court.
Wang believes that during the contract signing process, the fund company had the situation of making payments first and then signing the contract, and did not fulfill the appropriateness obligation of risk warnings, nor did it conduct a risk tolerance investigation on investors. At the same time, the descriptions of "The New Third Board is in a period of historical investment opportunities" and "Company A is the best private equity fund management and equity investment institution in China" in the recommendation materials are all exaggerated and sensational content. Based on this, Wang asked the fund company to pay its investment principal losses and compensate the corresponding capital occupation losses in total for more than 2.2 million yuan. If the request is not supported, Wang requests to order the fund company to organize liquidation of the fund products.
Fund Company argued that the company fully explained the various risks of fund products during the publicity stage, and also fully understood the investors' funding situation, risk identification and tolerance, and had fully fulfilled its appropriateness obligations. In addition, during the fund operation and management stage, the company will perform its management duties diligently and actively perform its management duties in accordance with the legal provisions and the agreements of the fund contract. At the same time, due to the combined influence of market risks and policy factors, Company A's stock price fell sharply and continued to be sluggish and was delisted. This fund product is not a product that guarantees principal and returns. The fund company fulfills its "seller's responsibility." Investors should "buyer at your own risk" due to other internal and external factors that have nothing to do with the company.
Regarding Wang's liquidation demand, the fund company stated that Company A has taken corrective measures in a timely manner in response to the securities regulatory department's order to correct the decision, which is not enough to affect the investment judgment of the investment target of the fund products involved in the case.
After the trial, the court ruled to reject Wang's lawsuit. Wang was dissatisfied with the appeal and went to Beijing Financial Court , requesting a change of judgment to support all his lawsuits.
After the second instance trial of the Beijing Financial Court, it was found that there were no major risk warnings in the fund company's recommendation materials, and the two parties also had the situation of "reverse signing of a contract". Fund companies fail to fulfill their appropriateness obligations in a timely and comprehensive manner in the process of selling fund products, fail to assess investors' risk tolerance in a timely manner, accept investors' subscription of fund products, and fail to fully disclose the investment risk before investors subscribe to fund products, and have certain faults. Since Wang is a qualified investor and has signed the "Fund Contract" and confirmed the subscription matters, the fund company has not substantially affected the investors' independent decisions on the funds involved in the subscription case, but should still bear certain compensation liability for his above-mentioned irregular behaviors. It can be determined at the discretion that the fund company will compensate according to the standard of 20% of the investor's subscription amount. However, regarding the demand for product liquidation, the court believes that as fund managers, the fund company should further standardize fund management in future work, be diligent and responsible, actively and proactively promote the orderly exit of the funds involved in the case, organize liquidation and distribution in a timely manner after the contract is terminated, protect the interests of investors to the greatest extent and avoid other disputes arising from this. In the end, the court ruled that the fund company would compensate Wang according to the standard of 20% of the investor's subscription amount.
Case Analysis
Suitability obligations belong to the concretization of the obligation of integrity in the sales field of financial products , and are the scope of obligations given to the seller institution before the establishment of the fund contract. If you violate the obligation of appropriateness, you shall bear the liability for compensation in accordance with the relevant provisions of on contractual negligence in Contract Law.
1. The suitability obligation is the " first contract obligation " of the fund manager and the entrusted sales agency. The time of performance should be before signing the fund contract. The fund manager and the entrusted sales institution shall perform at the sales stage. Before the investor signs a formal fund contract, the following procedures must be completed: confirmation of specific objects and qualified investors - risk tolerance assessment - investor suitability matching (appropriate product matching appropriate customers) - fund risk disclosure - signing of fund contract/partnership agreement - investment cooling-off period and return visits. When the investor has completed the subscription, the fund has been registered and invested in the target assets, the performance of the appropriateness obligation at this time does not comply with the legal rules and the principle of honesty and trustworthiness of .
2. In practice, it is inclined to believe that the practice of "paying money first and signing a fund contract" in the fund sales process violates the principles of fairness and reason, the principle of honesty and trustworthiness, the obligation of appropriateness, and there is a fault.
Beijing Haoyun Law Firm shareholder rights protection team, professional agent for securities false statement stock claims cases.
※Freight standard:
Risk agent, no attorney fees in the early stage, and the attorney fees will be paid after the case is over.
Eligible investors can send their names, contact numbers and transaction records (recommended as Excel files) to their email address [email protected] to participate in the claim pre-sumer collection activity organized by "Haoyun Law Firm".
