| Imposing appropriate obligations on financial institutions is one of the forms of preferential protection for investors,which aims to balance the unequal trading positions of both parties in the trading of financial products.At present,China’s rules on the obligation of suitability are set up for general customers,and there are no special provisions for elderly customers.There is a certain lag in the formulation of rules related to old-age financial management,so there is an urgent need to discuss the suitability obligations of financial institutions in the old-age financial management business at the theoretical and practical levels.The principle of good faith as its theoretical basis is reasonable when it is used to justify the suitability obligations of financial institutions in the elderly financial services.In the elderly financial management business,the information between the elderly investors and financial institutions is seriously asymmetric,and the cognitive ability of the elderly investors is declining.The dominant financial institutions should assume more obligations and responsibilities.The special protection of the elderly customer group in terms of appropriate matching and risk disclosure is the value embodiment of the appropriate obligation to safeguard the property rights and interests of the elderly investors,improve the internal governance of the company and promote the stability of the financial market.At present,due to the conflicts and gaps in legislation,the confusion and lack of operability of the rules,the recognition of the performance standard of the appropriate obligation in the elderly financial services is not extensive,and the recognition of the civil liability of financial institutions for violating this obligation is not standardized.Therefore,in order to provide more comprehensive legal protection for elderly investors,on the one hand,set up "form and substance" appropriate obligation performance standards,strictly implement the appropriate matching and risk disclosure obligations of financial institutions,and ensure the legal and compliant sales of financial products.Similarly,when trying relevant disputes,the court should review the performance of financial institutions’ obligations by combining procedural review and substantive review.On the other hand,clarify the civil liability of financial institutions for violating this obligation in the elderly financial management business.This obligation is a legal pre contract obligation,which is essentially the concretization of the principle of good faith in the contracting stage.If this obligation is violated,it will bear the liability for contracting fault.In order to balance the litigation status of both parties,the financial institution that has more information,materials and documents shall bear the burden of proof for its obligations and its failure to recommend to investors.When judging whether the financial institution has caused damage to the elderly investors due to the violation of the obligation of suitability,the degree of trust of the elderly investors in the financial institution should be taken as one of the standards to measure the compensation for losses,and the existence of the trust interests between the two should be taken as the key to measure whether the liability can be exempted.In order to further divide the responsibilities of each party,if the elderly investors fail to fulfill their information provision obligations,the financial institutions will be exempted from their responsibilities if they have completed the verification work prudently and responsibly;In the case of voluntary risk mismatch of elderly investors,it is necessary to stipulate the special warning obligations of financial institutions to elderly investors,and set a strict threshold for the leapfrog investment of elderly investors as a condition for liability exemption. |
