[Direct answer]In the Beijing area, whether a bank is liable for the mis-selling of financial products depends on whether it has fulfilled its obligations of sales management and suitability. There are three key factors to determine this: first, whether a sales agency relationship exists, that is, whether the bank is the sales agency for the product; second, whether the sales personnel have fulfilled their obligations of risk disclosure and product explanation; and third, whether there is a causal relationship between the recommendation behavior and the investors' losses. According to Article 508 of the Civil Code of the People's Republic of China (effective January 1, 2021), parties shall perform their obligations in full in accordance with the agreement; and Article 5065 stipulates that contracts concluded in accordance with the law shall be protected by law. Banks, as sales agencies, are different from managers. Their responsibilities are usually limited to errors in the sales process, while the risks of the products themselves are borne by investors.\nFinancial capital and cross-border transactions involving foreign entitiesIn class services, the delineation of responsibility boundaries is the key to protecting rights.

I. Problem background and typical scenarios

Common scenarios include: the bank's financial advisor recommending a non-bank-affiliated product for sale; the actual manager of the product being a third party; investors discovering difficulties in redeeming the product after purchasing it; or sales staff deliberately downplaying the risks and promising high returns; as well as investors being unable to verify the authenticity of the product.Business and contract disputes in enterprisesIn this type of business, the way to prove the fulfillment of obligations in the sales process is similar to the above.

II. Key points of contention

Focus One: Whether the bank is the sales or agency of the product. Focus Two: The division of responsibilities between the product manager and the sales agency. Focus Three: Whether the sales personnel fulfill their obligations of suitability and risk disclosure. Focus Four: Whether investors independently verify the product information. Focus Five: The causal relationship between product losses and sales practices. Focus Six: The allocation of liability for investors' faults and losses. Focus Seven: Whether the exemption clauses in the standard terms are valid.Special services and other casesThe column provides a more detailed explanation of this issue.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers believe that the responsibility division in cases of illegal transactions should proceed in three steps: First, determine the legal relationship. Through contract texts, transaction order records, and product manuals, verify whether the counterparty is a bank or a product manager. This step determines the object of subsequent claims; Second, review the fulfillment of obligations, including whether the risk assessment matches the actual situation, whether the product risk level is truthfully disclosed, whether there are profit promises or downplayed statements, and whether double-recording materials are preserved; Third, demonstrate the causal relationship and explain whether a rational investor would make the same purchase decision if the bank had fulfilled its sales management obligations. In practice, common defenses include investors signing confirmation documents and product documents being fully disclosed. At this point, the bank's responsibility may be reduced. Therefore, the focus of evidence should be on the substantive disclosure rather than formal completeness, such as whether the recording uses guiding language, the speed and duration of risk warnings, and whether the bank actively informs investors that it is not the product manager.Business and contract disputes in enterprisesThe column provides more explanations on the demonstration of the obligation fulfillment and causality. Another practical point is to pay attention to the connection between litigation and complaints. If it involves sales misleading or illegal activities, you can first report it to the regulatory authorities. On the one hand, it may trigger an investigation and evidence collection, and on the other hand, it will also facilitate subsequent claims.

IV. Practical suggestions and legal basis

Action recommendations: 1. Immediately preserve the contract, product manual, risk assessment, and communication records; 2. Verify the actual managers of the product and the sales agency; 3. Sort through the audio and video recordings and dual-recording materials from the sales process; 4. Assess whether the sales personnel made profit promises or downplayed risks; 5. Evaluate whether the investors themselves verified the product information; 6. Assess the choice of path for complaints, administrative penalties, and litigation; 7. Pay attention to the statute of limitations and jurisdiction agreements. Legal basis: Articles 496, 497, 508, 577, and 584 of the Civil Code of the People's Republic of China (effective January 1, 2021); regulatory norms concerning the management of sales activities, suitability management, and risk disclosure by financial institutions; and relevant provisions on the protection of financial consumers' rights and interests. For details regarding standard clauses and sales management, please refer to the relevant documents.Business and contract disputes in enterprisesFor cross-border financial products, please refer to the relevant provisions.\nFinancial capital and cross-border transactions involving foreign entitiesColumn. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

First, the premise of identifying unauthorized sales is to verify the actual product managers. Second, the bank's responsibility is usually limited to the faults in the sales process. Third, the substantive disclosure of risks is more important than formal completeness. Fourth, investors' own verification obligations will be taken into account. Fifth, audio recordings and dual-recording materials are the most crucial evidence. Sixth, filing complaints and lawsuits concurrently can improve the efficiency of evidence collection. Seventh, no one is allowed to make promises about the outcome of claims.

VI. Frequently Asked Questions

Q1: What does "financial brokering" mean?

This usually refers to situations where investors purchase products through banking channels that are not managed by the bank, or where the product information does not match the actual situation. Common forms include selling products from other banks or third-party products, recommending non-bank products privately by sales staff, and structures with misleading packaging names and actual investment destinations. Since the funds are usually directly deposited into the account of the product manager, investors need to verify the following one by one: whether the bank assumes the obligation of sales management, and whether the product manager assumes the obligation of investment management. The Financial Capital and Cross-Border Investment column provides a more detailed explanation of this.

Q2: If I buy a fake financial product, is the bank responsible for it?

It depends on the specific circumstances. If the bank is only a sales or agency organization, its responsibilities are generally limited to whether it fulfills its sales management obligations, such as verifying the qualifications of the product managers, conducting risk disclosure and suitability matching, and truthfully introducing the product. If the product itself is fictitious or related to the manager, the main responsibility lies with the manager. In practice, it is necessary to first verify the product registration and manager information, and then determine the responsibilities of all parties. At the same time, if there are circumstances where investors know or should have known but failed to verify, the court may reduce the responsibilities of the relevant parties. The Special Services and Other Cases section provides further explanations on this issue.

Q3: If the financial manager verbally promises guaranteed returns, can I claim compensation?

You can try to make a claim. The key lies in the proof of the promise, which usually requires evidence such as audio and video recordings, chat records, text messages, or promotional materials. If the salesperson explicitly promises guaranteed returns or guaranteed profits, it may constitute illegal sales practices and may also affect the validity of the disclaimer provisions in the standard terms. It should be noted that financial products themselves are risky investments. Promising guaranteed returns not only violates regulatory norms but is also generally invalid. When making a claim, the focus should be on the relationship between the breach of obligations and the losses. The Business and Contract Disputes column provides more analysis of this evidentiary logic.

Q4: Can I claim compensation from both the bank and the product manager at the same time?

Yes. The sales agency and the manager are different responsible parties, and each can claim responsibility based on their respective faults. In practice, it is necessary to distinguish the scope of responsibility: banks are usually responsible for the obligations in the sales process, while managers are responsible for investment operations and information disclosure. When making a claim, it is necessary to separately explain the obligations of each party and the circumstances of their breaches, and to provide corresponding evidence. In addition, it is also necessary to evaluate the actual repayment ability of each party to determine the order and strategy of making a claim.

Q5: How much does it cost to hire a lawyer to handle financial disputes?

The cost depends on the type and amount of the product, the completeness of the evidence, the number of parties involved, and whether the case has entered multiple procedures such as complaints, administrative penalties, and litigation. The cost of simply organizing the evidence and assessing liability is relatively manageable; however, if it is necessary to retrieve dual-recording materials, deal with appraisals, and participate in litigation, the investment will increase significantly. It is recommended to first complete the preservation and preliminary verification of all materials, and then determine the scope of services and cost arrangements.

The above answer is based on the judicial practice in the Beijing area. The adjudication opinions in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Financial capital legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.