金融机构适当性义务的法律性质与司法审查——基于裁判分歧的分析与展开

为加强对金融市场投资者的保护，各国金融法制已普遍建立金融机构适当性义务规则。我国在部分金融立法中引入适当性义务，约束金融机构的行为规范也日臻完备。然而，由于我国金融立法尚未全面接纳适当性义务，在司法实践中也出现了金融机构与投资者之间法律关系界定混乱，以至于投资者请求权依据不明；金融机构履行适当性义务的司法审查偏于形式化、金融机构履行风险揭示义务认定难等问题。为了更好地发挥适当性义务的规范功能，应当将金融机构与投资者之间的关系主要界定为金融服务关系，以明确投资者的请求权基础。在判断金融机构履行适当性义务时,应兼顾程序审查和实质审查两个维度，并结合格式合同和说明义务，来认定金融机构是否履行风险揭示义务。

Legal Nature and Judicial Review of the Appropriateness Obligation of Financial Institutions: Analysis and Development Based on Referee Disagreement

In order to strengthen the protection of investors in financial markets, the appropriate obligation rules of financial institutions has generally been established in the financial legal systems of various countries. The introduction of appropriate obligations in some financial legislation and the regulation of financial institutions are becoming more and more complete. However, because our financial legislation has not fully accepted the appropriateness of duty, in judicial practice, the definition of legal relationship between financial institutions and investors is confused, and the basis of investors' right of claim is unclear. At the same time, the judicial review of financial institutions' performance of appropriate obligations tends to be formalized, and it is difficult to identify financial institutions' performance of risk disclosure obligations. In order to better play the normative function of the obligation of appropriateness, the relationship between financial institutions and investors should be mainly defined as the relationship of financial services, so as to clarify the basis of investors' claims. When judging the appropriateness of financial institutions' performance of obligations, we should take into account the two dimensions of procedural review and substantive review, and determine whether financial institutions perform risk disclosure obligations by combining standard contracts and explanatory obligations.