Author | Produced by Xia Xinyu
| Yujian Finance
In the past, I often encountered investors who were terrible and were losing money after investing in a certain product (such as funds, trusts, private equity products, etc.), and found that it was difficult to get back money from debtors or product issuing institutions. So I thought about it and sued the bank that is often the richest and most fearful of the entire product chain.
even has investors who come to groups to bring banners and go to the door of the agency bank to make a fuss. Is it useful to do this in
? In most cases, it is useless. Unless, the agency bank has a handle in this process, including:
first, whether the legal relationship between the bank and the actual product party is "out of the outline". On the other hand, if the bank only does agent sales, cash collection and payment, custody agreement, etc., and only collects agency fees, then the loss of the product is not related to the bank's business. Second, whether the bank’s sales to customers have achieved compliance and “seller fulfills its responsibilities”. If the seller has fulfilled his responsibility, then the loss can only be "the buyer is responsible for it".
Tonight's "Yujian Finance" will tell you two cases that I think are classic and have a comparative significance. The case of
was rejected. The case of
Y
A was rejected. The investor Wang invested 966,000 yuan in " Qianhai Kaiyuan CSI Military Industry Index Securities Investment Fund ", and lost nearly 580,000 yuan. He sued Beijing Enji Branch, a major bank that sold funds, on his backhand. The investor Cao invested 50 million yuan in the "Jilin Trust Songhuajiang (77) Shanxi Fuyu Energy Project Income Rights Collective Fund Trust Plan" (12% annualized income). As a result, the fund used by the payer Shanxi Liansheng Energy Co., Ltd. could not be redeemed after the expiration of the funds, and he also went to the Luliang Intermediate People's Court to file for bankruptcy. Therefore, Cao failed to invest and could not recover all the principal and interest. While suing Jilin Trust, he also sued the Shanxi Branch of a major distribution agency.
The result is that the investor in Case A won the lawsuit; the investor in Case B's lawsuit was rejected. The bug of the bank selling agency in the
A case is that it conducted a risk assessment of investors before the sale. The questions in the questionnaire include:
- "Which of the following best explains your investment experience", Wang's option is "Most invest in deposits, treasury bonds, etc., and less invest in risk products such as stock funds";
- "Which of the following is most in line with your investment attitude", Wang's option is "Conservative investment, do not want principal loss, and is willing to bear a certain amount of return fluctuations";
- "Your investment purpose", Wang's option is "steady growth of assets";
- "What degree of fluctuation does your investment cause, you will show obvious anxiety", Wang's option is "loss within 10% of the principal".
According to this, Wang's risk assessment result was "stable", and the "Qianhai Kaiyuan CSI Military Industry Index Securities Investment Fund" recommended by the agency bank to Wang is a "higher risk" and "no guaranteed minimum return" product, which is obviously inconsistent with Wang's risk preference.
Therefore, the court determined that, first, the agency bank actively recommended funds that exceeded the investors' risk tolerance to investors, which was a major fault; secondly, the agency bank failed to explain to investors the operation mode and risk situation of the funds involved, and there was obvious inappropriate recommendation behavior.
Therefore, the lawsuit requested by investors to compensate the bank for their losses is based on the law and the court supports it. The investors in the
B case are not so lucky.
From the perspective of the sales process, the court found that Cao had purchased trust products many times, meeting the recognition standards of "qualified investors". The "Trust Plan Description", "Risk Statement", and " Trust Contract " clearly indicated the possible risks in many places. Therefore, investors "have fully realized the risks of the trust plan involved in the case", and the agency bank should not bear the liability for compensation.
, that is, the principle is "the seller is responsible and the buyer is responsible."
Bank's legal relationship in it
Y
In fact, there is another interesting highlight in case B.
Investor jointly sued the agency bank because he believed that the bank was a "co-trustee" of the trust plan.
Theoretically, the only trustee is Jilin Trust. Then why do investors pull the agency bank into the water? The reason was that he found that the trust plan was established by the agency bank (Shanxi Branch) in order to solve the financing of the relevant enterprises of Shanxi Liansheng, which was insufficient in the credit scale, and actively contacted Jilin Trust. In other words, he believes that Jilin Trust is equivalent to creating a "trust channel".
According to the "Reply Opinions on Several Issues Concerning Investors" provided by Jilin Trust to investors provided by the plaintiff, the trust remuneration collected by Jilin Trust is 1.7%/year of the actual funds raised, the agency fee collected by a major bank's Shanxi branch was 1.9~4.1%/year of the actual funds raised, and the bank custody fee was 0.1%/year of the actual funds raised.
However, the testimony and evidence provided by the investor were not accepted by the court in the end.
agency seller Shanxi branch of a large bank argued: 1. The investor, trust and bank involved are trust legal relationships caused by the trust contract; 2. As a trust product, there are risks themselves, and the contract clearly states that the principal and interest are not guaranteed. As a qualified investor, the plaintiff still chooses to purchase the trust product when fully aware of the possible risks, indicating that it voluntarily accepts the possible risks; 3. The agency seller fulfills the corresponding agreement obligations in accordance with the signed collection and payment agreement and custody agreement, and there is no breach of contract; 4. The distribution issue of the trust property involved, according to the provisions of the Trust Law, has a special system and adopted the system of return in the original state. In this case, the trust property is still in existence and has not been liquidated yet, and the losses cannot be calculated, so the plaintiff’s claim for 50 million yuan and the corresponding interest lacks the corresponding factual basis.
In fact, the agency bank has grasped two points: one is that it has written a legal relationship in it, that is, the "collecting and payment agreement" and the "custody agreement"; the other is that the plaintiff is a qualified investor, and the trust contract also reveals the risks.
trustee Jilin Trust argued: 1. The establishment of a trust plan complies with the statutory procedures, and Jilin Trust fulfilled its prudent obligations and conducted a full due diligence on the project; 2. Jilin Trust issued funds raised by the trust plan in accordance with the provisions of the "Trust Contract" and conducted necessary supervision on the use of funds in accordance with the agreements of the "Project Revenue Rights Transfer and Acquisition Contract" and other transaction documents; 3. He entrusted a Shanxi Branch of a major bank as the trust plan custodian and the fund collection and payment bank to promote the trust plan in accordance with the law, and has reported to the Jilin Banking Regulatory Bureau and the Shanxi Banking Regulatory Bureau respectively. The establishment procedure complies with the provisions of the "Trust Law" and the "Collective Fund Trust Management Measures" and other relevant laws and regulations; 4. Jilin Trust has also fulfilled its disclosure obligations and comply with the regulations.
So in the end, from a legal perspective, it can only be a trust relationship, that is, the investor delivers funds to the trust for investment, and the trust does not bear the guaranteed capital or the minimum return, which is obviously different from the legal relationship of lending.
According to the provisions of "risk assumed" in Article 18 of the Trust Contract and the provisions of Article 22, paragraph 1 of the Trust Law and Article 14 of the "Collective Fund Management Measures", even if the losses actually occur, the investors shall bear it themselves.
plus the payment user who filed for bankruptcy, the final liquidation has not been completed (although God knows when to go...), that is, whether the principal interest of investors will be wasted in the end is still not determined.
Finally, the court rejected the investor's lawsuit.
