摘要
金融消费中卖方机构告知说明义务和适当性义务的定性尚存争议,相关规范对适当性义务和告知说明义务的罗列亦不统一。从比较法来看,区分告知说明义务和适当性义务具有实际意义。基于规范上对告知说明义务和适当性义务的列举内容,我国金融产品销售中的告知说明可以分为缔约前、缔约时、缔约后三个阶段。缔约前的告知说明义务是适当性义务的一部分,属于先合同义务。缔约时的告知义务可以区分为对合同具体风险的告知和对具体合同内容的解释,两者责任范围有所差异,前者属于先合同义务,后者属于广义附随义务。缔约后的告知说明义务涉及合同的履行,属于附随义务或合同义务。
The nature of the obligation of disclosure and the obligation of appropriateness of the seller in financial consumption is still controversial, and the lists of the obligations of appropriateness and disclosure in relevant norms are not consistent. From the perspective of comparative law, it is of practical significance to distinguish between the obligation of disclosure and the obligation of appropriateness. Based on the normative enumeration of disclosure obligation and appropriateness obligation, disclosure in the sales of financial products in China can be divided into three time-stages: before, during, and after the signing of the contract. The obligation of disclosure before signing the contract is a part of the obligation of appropriateness, which belongs to the obligation of pre-contract. The obligation of disclosure at the time of contracting can be divided into informing the specific risks of the contract and explaining the specific contents of the contract. The scope of their responsibilities is different. The former belongs to the pre-contract obligation, while the latter belongs to the broad collateral obligation. The obligation of disclosure after signing the contract involves the performance of the contract, which belongs to the incidental obligation or contractual obligation.
出处
《地方立法研究》
CSSCI
2022年第2期80-94,共15页
Local Legislation Journal
关键词
金融消费
告知说明义务
适当性
缔约过失责任
违约责任
financial consumption
disclosure obligation
appropriateness
contracting fault
liability for breach of contract
