金融消费类纠纷陷阱多 委托理财保底合同一般无效
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3·15消费者权益保护日来临前，昨天上午一中院通报有关金融消费类纠纷案件的审理情况，法院对金融消费类纠纷中的证券虚假陈述责任纠纷中因果关系如何认定等几大热点、难点问题进行分析，提示消费者如何维权。通报显示，与传统消费领域相比，金融产品及服务专业性强，投资人由于相关知识匮乏，导致金融消费类纠纷案件数量呈增长趋势。举证困难金融产品术语晦涩难懂记者从通报会上获悉，金融机构主要包括银行业机构、证券业机构、保险业机构以及其他从事金融或与金融相关业务的机构。金融消费类纠纷案件多为财产保险合同纠纷、银行卡纠纷、委托理财合同纠纷、证券虚假陈述责任纠纷。据不完全统计，近三年来，仅一中院审理的证券虚假陈述责任纠纷案件就达200余件。其中金融产品及服务专业术语晦涩难懂，产品结构复杂，交易模式技术性强，出现问题时，消费者举证难度大。法官表示，金融消费者多系普通民众 ，证据意识淡薄，因纠纷诉至法院，多因举证不能而承担败诉后果。一些金融机构有时会通过格式合同的方式减轻自己的责任、限制消费者权利，即便此后消费者认为自己的权利受到损害，但在格式合同有效的情况下，消费者很难通过正当途径维权。法官提示保底条款一般认定无效法官告诉北京晨报记者，金融消费者在委托金融机构进行理财时，为规避风险，多在合同中约定保底条款。而在司法实践中，结合相关法律规定，一般认为金融类委托理财合同中的保底条款应被认定为无效。但保底条款是金融类委托理财合同的核心条款，是当事人尤其是委托方缔约之实质目的所在，是合同不可分割的部分，保底条款无效，必然导致整个合同无效。三个条件认定证券虚假陈述责任1998年10月，某公司在上交所上市，日，该公司因涉嫌存在虚假信息披露行为，被证监会北京监管局立案调查，后被认定存在“虚假记载”行为。记者了解到，在证券虚假陈述责任纠纷中，双方当事人常就虚假陈述与损害结果之间是否存在因果关系产生争议。针对这一情况，法院在审理实践中，认定虚假陈述与投资人的损害结果之间存在因果关系，应同时满足三个条件，即首先，投资人所投资的是与虚假陈述直接关联的证券。第二，投资人在虚假陈述实施日及以后，至揭露日或者更正日之前买入该证券。第三，投资人在虚假陈述揭露日或者更正日及以后，因卖出或持续持有该证券而产生亏损。但法官指出，如果股票在虚假陈述揭露日或者更正日前已经卖出、明知虚假陈述存在而进行的投资、属于恶意投资、操纵证券价格的等不在此列。
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你可能喜欢黄金现货交易客户合同(中英文）
Signature:&&
Variety and Quality of Transaction
Valuation Unit of Transaction
Quantity Limitation of Transaction
Determination of Transaction Price
Mode Selection of Transaction
Transaction Rules
Material Delivery
Exceptions
Miscellaneous
Appendix One
IMPLEMENTATION RULES OF ELECTRONIC LONG-DISTANCE
&Party A :
Party B ( client
hereto, in accordance with the principles of equality, voluntary,
honesty and through amicable negotiation, enter into this contract
on the project of , parties hereto agree as follows for
performance and observation:
1和亏损均有可能。
acknowledge and agree that party B has fully understood, on the
date of signature hereof, the risks in the business of extension
delivery of gold spot transaction. At the process of gold spot
transaction both profit and loss may be possible due to the gold
price mechanism being subject to the influence of uncertain world
factors of several kinds.
carefully read this contract and attachments herewith before
signature of contract, especially the relevant agreements on
titles, liabilities, provision of exemption and the likes. Party
B’s signature will represent and means that party B has carefully
read, understand and agree all contents of contract and its
attachments.
signature of this contract is subject to the authorization of HK
GOLD CAPITAL LIMITED with the purpose of gold spot transaction and
opening account settlement for party A’s operation.
and quality grade of transaction subjects refer to the golden bar
of which the purity is 99.99% and conform to international gold
market’s sale standards, or other golden products.
explanation: the purchase of golden bar refers to that party B,
pursuant to the
buys the gold on-hand merchandise at
same time hole the warehouse receipt of properties which may be
delivered on spot.
out of gold bar refers to that Party B, pursuant to the current
price in international market, sells out its holding the warehouse
receipt of on &hand gold merchandise.
of on-hand merchandise refers to that party B, on fundamentalof its
holding warehouse receipt, withdraw the gold products or the
customer returns cash which value equal to the standard golden bar
subsequent to selling out the golden products.
measurement of gold transaction is subject to international
standard, viz. price of US Dollar / Ounce.
ounce =31.1035 gram
purpose of avoidance from undertaking client’s exchange risk at the
time of conversion of RMB valuation, client agree and confirm that
the fixed exchange rate of RMB / USD is 1:7.
The amount
of the extension delivery of gold spot transaction which is
referred herein is 5 ounces per transaction unit and the maximum
amount of each transaction is 800 ounces.
transaction will be conducted on the fundamentalof the current
price of international gold market in addition to the commerce
platform being international synchronization, and USD / Ounce is
the transaction fundamentalfor quotation of price.
Client may
select at its discretion the on-site or long-distance transaction
or long-distance ordering.
site-transaction refers to the same on which party B conduct, on
the current price of international gold market, at the site which
is designated by party A or agreed by parties hereof.
long-distance transaction or ordering refers to the same which
party B conduct at the site which is selected by itself, through
the electronic commercial platforms of communication and network
and so on, particulars of which are as follows:
Transaction of phone-declaration refers to that party B, on
the fundamentalof transaction by staff’s current quotation, confirm
its business intention and amount for which staff conduct the
operation on party B’s instruction.
Transaction of electronic declaration refers to that party
B conduct the transaction on electronic commercial platform of
international gold market through the internet self-service
declaration which is entered into depending on the transaction
account and password.
may select by itself one of following means to carry out the
delivery refers to the .
Anticipated delivery refers to the term of gold delivery
which is required by party B is within the period of five days (
except including ) on and from the establishment of contract after
placing an order, the specific date of delivery will be otherwise
designated by party B and party A will make operation under party
B’s direction.
specific provisions of the deferred delivery transaction through
party B’s long-distance transac party B will,
making reference to APPENDIX ONE, conduct the deferred delivery
through spot transaction. Provided that party B make delivery of
gold on the date which is designated, the procedure and rules of
gold delivery will be executed pursuant to Article Severn
Party B’s deferred delivery will be conducted by deposit for which
the detail rules are made reference to APPENDIX ONE.
Transaction
Party B’s
transaction should be subject to the signature of written contract,
the transaction contract include the same in writing and the
original data which are recorded in computer of the electronic
commercial platform and so on.
that party B conduct the spot transaction, party B should on the
time of carrying out transaction sign written contract of
Respect to
party B’s long-distance transaction, party B should confirm the
original data of electronic commercial platform have the equal
legal force and effect with the written sale contract, viz. the
fundamentalof each transaction’ Party B may require
to make signature of the written contract at business place as
supplementary agreement.
may directly order the instructions of sale, deposit appropriation
and may authorize other to order the instructions of sale, deposit
appropriation and signature of contract, provided that no any
instruction of sale, deposit appropriation and signature of
contract can be issued to party A’s staff.
event that party B entrust other to make the signature of written
sale contract, party B should submit the Power of Attorney on which
the entrusted term limited and authorized items should be
specified. The Power of Attorney should be subject to party A’s
review and exam before the agent can conduct relative acts for
which any legal consequences will be undertaken by party B
which is authorized by party B can, within the authorization scope,
operate party B’s sale account for and on behalf of party B,
provided that any statement or guarantee make by entrusted agent to
party B will not be constitute the same of party A and party B
specifically agree that party A will assume no liability or
responsibility for any act and behavior conducted by the authorized
agent of such kind.
Settlement
immediate settlement of party B’s order will, within the period of
transaction, pursuant to the alteration of international market
price, be conducted by electronic commercial system.
Commission Fees
should on the provisions hereinafter pay the commission fees to
should, pursuant to the provision of (3) Paragraph 3 , Article
Seven, effect payment of relevant charges for gold
should, in the absence of application of gold delivery, effect the
pro rata payment of commission fees for purchase or sell should be
effected, for which ( unilateral )155 Yuan RMB / 100
interest: Provided that party B purchase gold and the period of
holding gold exceed next day’s dawn 6:00 after purchase of gold,
party B should make compensation to party A, of 80
as th however in case of
party B’s sell of gold, party A should pay the compensation of
overnight interest to party B for 50 Yuan RMB for 100
delivery of gold will, being subject to party B’s application, in
accordance with following regulations, is executed.
of Goods: Party B can not make the application of gold delivery
unless and until effecting full payment of goods’ cost pursuant to
the agreement.
Application: Party B may fill in Delivery Application on the
bargain day, or choose other day to fill in.
time is the daytime working hours for party A in the normal working
3: Take Delivery of Goods
Party B can not take delivery of goods until and
unless effect in full amount of payment of goods’ cost in addition
to the fees for processing circulation which is 310 Yuan RMB for
per 100 Ounces.
may, after selling gold bar, choose GUO TAI HUI LI LIMITED COMPANY
to make delivery.
receipt of client’s gold bar, make inspection of the
quality and weight of gold bar.
Fees of 310Yuan for 100 Ounces in addition to the inspection fee of
2 Yuan for per gram will be on client’s account and HK GOLDSPLENDOR
CAPITAL LIMITED will, upon the inspection qualification, make
settlement of full payment of goods’ cost within two working
will undertake non- responsibilities of risks relating to
interruption and delay of sales due to the reasons of force majeure
including earthquake, fire and war and so on, provided that should,
to the extent which is practicable, take necessary remedy
measurement to reduce the loss which is caused by force
shall not be responsible for party B’s loss which is due to the
amendment of State’s law, regulation, rule and policy and the
emergency measures issued by State.
will not undertake the responsibility of party B’s loss which is
causing by the delay of the transmission and execution of
instruction, which due to the interruption of communication
facility and electrical power, internet breakdown and so
Miscellaneous
Settlement: Any dispute which arise out of the contract execution
should be tried to make settlement by amicable negotiation between
parties hereof.
Termination: Each party hereof may, at any time inform in
written notice opposite party the termination of contract, which
will be effective upon the date of notice’s arrival of opposite.
Party B should on the termination date make full payment of all
sums due and payable to party A, such sum payable include but not
limit following items:
&All payable fees and
&Fees caused by the
termination of contract
Fees due to delivery of golden
contract will, after termination and before full settlement of sums
payable between parties, still has legally banding force on parties
hereof, and the remaining sum of transaction deposit will be
refunded to party B by party A.
The appendix hereof include that Appendix One Rule of Long-distance
Business, Appendix Two Warning of Risks, Appendix Three Letter of
Authority and Appendix Four Supplementary Information. Appendix are
the integral component hereof and have the same legal force and
effect with contract.
Effect: This contract is enter into two copies and become effective
upon parties’ signature / steal. The transaction by parties during
contract effective period should be subject to the provisions of
this contract.
Party A&&&
IMPLEMENTATION RULES OF ELECTRONIC LONG-DISTANCE
the particularity and characteristics of the long-distance
transaction of gold, the formulation of Appendix One hereof is made
on the relevant rules concerning to the delay delivery in
long-distance transaction and Appendix One, as the integral part
hereof, has same legal force and effect with contract, by which
parties should commonly obey.
Definition
Long-distance Transaction herein means the same which is made in
the place selected by party B at its option, through communication,
internet and so on, the main form are including as
&Party B carry out
computer self-service transaction through LAN.
&Party B carry out
self-service transaction on electronic commercial platform through
Transaction through telephone
declaration.
Transaction Records refer to the original transaction data
which are deposited in the electronic commercial platform and all
written information which are formed on the fundamental of the
original data abovementioned.
The risk rate = net worth/takes the deposit
Transaction
From& 0600 AM on Monday to 0500 AM Saturday, if, any alteration of transaction
falls on holiday, shall be subject to notice thereof.
Transaction
Unit and Base Deposit
Each unit of transaction is five ounces. The
transaction quantity of a single contract is five ounces and the
transaction quantity is the multiples of five or ten
Respect to
the immediate transaction, the fundamental deposit on certain
proportion of selling or buying value should be effected for the
financial guarantee of transaction performance. No transaction will
be carried out until or unless receipt of such deposit which may be
made the adjustment as the case of market may be.
should, upon signature of this contract, deposit 10000 US Dollar
into the account which is designed by party A as deposit of
transaction.
payment of deposit may be effected by the means of , where the payment by cash, promissory note, check and
bank drafttransaction can not be commenced until and unless
the confirmation of party B’s deposit to party A’s
that the adjustment of fundamental deposit amount stipulated in
Third provision hereof will be effected pursuant to the market
conditions, such adjustment should be subject to the seven day’s
announcement or notice on the adjustment.
that if party B’s deposit amount is manifestly insufficiency and
the risks may arise out thereof, party B should added the amount of
fundamental deposit.
electronic commercial platform will, where the risk rate of party
B’s transaction account 20%, automatically deal
with part or all of party B’s account, and which may bring about
the termination of his transaction.
Transaction
will, upon party B’s commencement of long distance transaction,
provide party B with the initial passwords for transaction,
internet entry and phone declaration, party B should timely alter
such passwords.
Authorized
详见《附件二》。乙方违反本规则而造成的一切损失由乙方自行承担。
may authorize an agent to issue
and so on, provided that
shall not authorize party A’s employees to issue the directions of
transaction and deposit allocation and signature of written
contract. Authorized person is referred to Annex Two. Any loss
which is arising out of party B’s violation& of provision hereof
will be undertaken by party B itself.
Instruction
Party B’s
direction for transaction may by issued by the means provided in
Article One hereof and party A is entitle to reserve the original
direction by other means.
known and agree that computer recording data which are instituted
in electronic commercial platform are the symbol of contract
establishment, which has the binding force of law on the parties
Verification of
Instruction
Party A is
entitle to review the instruction of party A or its agency
including whether deposit adequacy, its instruction integrity and
accuracy or not so as to confirm the effectiveness of instruction.
Where party A, confirm at its sole option party B’s instruction
invalid, is entitle to refuse to execute party B’s
instruction.
Withdrawal and
Alteration of Instruction
and its agency may, after issuing instruction and before completion
of transaction, withdraw or alter instruction hereof, provided that
upon completion of transaction party B should undertaken the result
of transaction.
Deposit Account
Management
will open the transaction account for and on behalf of party
that party B fail to conduct any transaction within one month, its
account will be locked up by electronic where
no transaction within three months party A is entitle to settle its
account. The balance of account after effecting settlement will be
refunded to party B.
Party A is
entitle transfer deposit from party B’s deposit account in the
following cases:
payment of the deposit balance pursuant to party B’s written
instruction.
Party B should
effect payment to party A, of fees for material’s delivery and
other costs.
Party B’s loss due to
transaction.
items of payment which are agreed by parties hereto in the written
agreement signed by party A and party B.
Confirmation
List of Transaction
1和结果以电子商务平台的记录为准。
Party B’s
daily transaction will be subject to the record of electronic
commercial platform.
should pay attention to its daily transaction, where party B has
any objection on the recorded items in electronic commercial
platform, should provide its objection to party A before end of
next working day. Provided that party B ‘s failure of providing
objection, will be deemed party B’s confirm to the recorded items
of electronic transaction and the platform has executed party B’s
instruction correctly.
Party B’s
confirmation of electronic transaction record shall refer to party
B’s confirmation of the result of actual transaction and
corresponding rights and interests. Provided that result of
transaction or alteration of rights / interests have not occurred
actually, only due to party A’s fault in working, which arise out
of the inconsistency between the recorded items in the Settlement
List and the actual transaction result , rights / interests, party
B’s confirmation will not constitute party B’s actual transaction
result and the alteration of rights / interests.
has read carefully this appendix, understand and agree all
provisions above.
B&&&&&&&&&&&&&&&&&&&&&
Appendix II
Warning for
、稳定。尽管如此，本着对您负责的态度，在此:
You are reminded to read carefully following
contents so as to understand in accuracy and fullness the risks of
long-distance transaction. The effective measurements and current
advanced technology including the same of encryption, network and
backup, and so on have been adopted to protect the safety of
client’s material and transaction, which will be continued
necessary renovation along with the emergence of new technology so
as to keep safety, efficiency and stability. Nevertheless we, with
a view to your interests, hereby remind you that the risks of
long-distance self service transaction still exist and not limited
following extent.
should, on the operation of long-distance transaction, have certain
operation experience and transaction procedure so as to prevent
economic loss due to improper operatioin.
computer and soft system which are used to carry out long-distance
transaction should match with our web system, to prevent economic
loss which is aroused out of transaction fault due to& unsuitable
The market
information which are provided through internet by us to client are
only for your reference of investment, and such information may be
false or misleading, by which you carry out operation, the risks
may be exist.
that if you conduct transaction by long-distance system, any loss
which is due to unpredictable reason or force majuere including but
not limited to line, computer and telephone faults, shall be
undertaken by yourself, such as
The reason
of internet data translation which bring about the interruption,
suspension, delay and data error and so on for the price,
instruction and entrus
system failure, transaction interruption is caused by procedure’s
effect, data diff
Your identity may be
The loss which is due to failure of
altering initial password in time after conducting long-distance
which arise from counterfeiting caused by loss, disclosure and
forgetting of transaction password and the loss occurred before
reporting loss thereof.
due to other reasons which are not attributable to us.
You should
have definite acknowledgement that all effective commissions
conducted by transaction password shall be deemed as the effective
entrustment by yourself ‘’s putting into and all consequence
arising therefrom will be assumed by yourself. You should keep
yourself transaction password confidential, where, any loss by
counterfeiting arising out thereof due to loss, disclosure and
forgetting of seal, password, ID and so on, will be assumed by
yourself. Provided that if loss of personal data or forgetting
password, you should in time make application of loss reporting and
re-applying, alteration, any loss occurred therebefore will be
assumed by yourself.
economic loss which arise out of yourself reason in transaction
commission will be assumed by yourself.
WARNING fail to disclose all risks of long-distance transaction and
all cases in the gold spot market, so you are advised to make
careful study on contract and appendix thereof prior to opening the
long-distance transaction and make objective judgment on yourself
capacities of economy, risk control and psychology before deciding
whether to proceed with transaction.
WARNING above has been, before signature of Client Agreement by
myself, careful read and fully understand, and agreed.
controversy or difference between the versions of Chinese and
English, the Chinese version shall be prevail.
&Signature by client
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