Are you confused by the various wealth management products in the market, such as **, trusts and bonds? Do you feel at a loss for what to believe when asked by your financial manager? What should I do if I find a wealth management company that does not have the appropriate qualifications? The more you manage your finances, the more you lose, how to recover your funds? Xiaobaogong Legal AI can give risk warnings when signing contracts to help you avoid property risks that you may suffer when investing and managing money!
1. Distribution of cases of entrusted wealth management contracts
With "entrusted wealth management contract" as the keyword, 22 authoritative cases and 44,660 ordinary cases can be found in the search system of Xiaobao public intelligent case retrieval system, which shows that there are not a few legal disputes arising from entrusted financial management. After the visual analysis of Xiaobaogong, it can be seen that the disputes of entrusted wealth management contracts are mainly distributed in economically developed cities such as the eastern coast.
2. One of the typical cases: Hu Moumou v. an investment consulting company, a case of entrusted wealth management disputes
(1) Basic facts of the case
Defendant Hu XX was recommended by a friend and learned of a company A that claimed to be business scope investment consulting, technology promotion services, corporate image planning, public relations services, and organization of cultural and artistic exchanges. After several consultations, Hu Moumou signed a contract with Company AAgreement on International Asset Entrustment Management, entrusting Company A to operate the 3 million yuan in its ** account, and Hu is not allowed to operate, the period is one year, and it is agreed that the cost of managing assets is 30% of the income. After making a profit of more than 20 yuan, Hu changed the account password without the consent of Company A and successively transferred all the funds, so the two parties had a dispute.
Mr. Hu believed that Company A was not qualified and should be deemed invalid and return the management fee of 45,000 yuan, while Company A believed that Mr. Hu was in breach of contract and required him to pay the income from the entrusted assets and terminate the contract.
(2) The gist of the adjudication
After investigation, Company AThe business scope is investment consulting, technology promotion services, corporate image planning, public relations services, etc., and does not have the qualifications to engage in first-class asset management businessThe contract shall be null and void because it has been concluded beyond the scope of business.
The court of first instance held after trialIn China's ** market, enterprises engaged in entrusted wealth management business should obtain special permission from the ** regulatory department, and the trustee must obtain the corresponding entrusted wealth management qualifications and accept the necessary supervision and management.
In this case, the trustee Company A did not have the qualifications to engage in the asset management business activities, so the "International Asset Entrustment Management Cooperation Agreement" signed between it and Hu was invalid, and according to Article 197 of the ** Law, it should be subject to administrative penalties such as confiscation and fines. Therefore, Company A's behavior is an illegal act that should be sanctioned, and the asset management fee of 45,000 yuan obtained by it is illegal gains, which can be confiscated and may be recommended to relevant institutions for disposal. Therefore, it cannot be returned to Hu in accordance with the law, and his counterclaim is not supported.
Article 160 of the Law stipulates that "engaging in investment consulting services shall be subject to the approval of the first supervision and management authority; Without approval, it is not allowed to provide services for the trading and related activities of **. Engaging in other service business shall be reported to the supervision and management body and the relevant competent department for the record. ”
The content of Company A's entrusted wealth management is asset management, which is beyond its business scope, and the business is a restricted business that needs to be approved, so the "International Asset Entrusted Management Cooperation Agreement" is invalid because it violates the mandatory provisions on effectiveness. When investors invest in financial management, they must keep their eyes open and choose a licensed company.
3. Typical case 2: Yang Moumou and Chengdu Baichuantong Investment Consulting *** entrusted wealth management contract dispute
(1) Basic facts of the case
Mr. Yang and the defendant company signed the "Investment Entrustment Wealth Management Agreement", stipulating that Mr. Yang would invest 131,400 yuan to entrust the defendant to carry out foreign exchange ** investment and financial management, and authorized him to be the sole transaction order issuer of the special account and be responsible for the investment operation of the special account. Due to the mistake of the defendant company, Yang's account was liquidatedAfter negotiation between the plaintiff and the defendant, the Supplementary Agreement was signed on September 13, 2011, stipulating that the defendant company would make up the funds in Yang's account to reach US$20,000 within 6 months, otherwise it would be liable for compensation of 131,400 yuan. After the expiration of the term agreed in the agreement, the defendant company failed to make up the funds as agreed, and made Yang's account funds reach 20,000 US dollars, the defendant issued the "arrears (article)" and agreed to pay compensation of 131,400 yuan, and now the defendant has paid 60,000 yuan to the plaintiff, and still owes 131,400 yuan, 60,000 yuan, and 71,400 yuan, so Yang claims the payment of the remaining compensation from the defendant company.
(2) The gist of the adjudication
After trial, the court of first instance held that the Supplemental Agreement was an expression of the true intentions of both parties and did not violate the mandatory provisions of laws and administrative regulations, and therefore found it valid. According to the provisions of the Civil Code, if one of the parties fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Therefore, the defendant company should be liable for making up for the increased losses after the expiration of the Investment Entrustment Wealth Management Agreement. Therefore, the defendant company was ordered to bear the remaining unpaid compensation of RMB 71,400 as agreed in the supplementary agreement. Neither party appealed after the verdict was handed down.
When Yang signed the contract with the defendant companyThere is no agreement on the liability for breach of contract for failure to be entrusted with financial management, payment of losses, replenishment of funds, and default of capital operations, so the capital risks arising from the investment need to be resolved through negotiation between the two parties. When setting up an entrusted wealth management contract, investors need to pay attention to the establishment of a liability clause for breach of contract to avoid the situation that there is nowhere to recover property losses.
Fourth, the small package of the public reminder: the risk points that should be paid attention to in the entrusted wealth management contract
From the above cases, it can be seen that in the process of concluding the entrusted wealth management contract, it is necessary to pay attention to the qualification review of the entrusted wealth management manager. The AI for smart contract review can accurately remind the client to pay attention to the qualification review of the trustee and avoid the risk of economic losses due to invalid contracts. This article selects contract templates from the massive contract template library of Xiaobaogong to show the black technology of Xiaobaogong's smart contract review!
The review of small parcel public contracts supports the selection of corresponding review positions, providing enterprises with a risk identification model that is suitable for the subject. From the perspective of the corresponding entity, accurately consider the potential risks that may be brought to the enterprise in the whole cycle of contract signing and performance.
If there are no relevant clauses in the contract, the AI review will give a series of risk points and intelligently remind the enterprise to add missing clauses. As shown in the figure below, in the entrusted wealth management contract selected this time, with the entrusting party as the review position, Xiaobaogong AI reviewed 9 high-risk points, 6 low-risk points and 3 precautions. Among them, there are corresponding risks in the terms of the subject matter of the contract, the terms of price and payment, the terms of profit and loss, etc. On the basis of identifying the risk of missing clauses, Xiaobaogong provides corresponding legal basis and suggestions for amendment, and can supplement the clauses as needed.
In view of the lack of a breach of contract liability clause for detailed breach of contract in the contract, Xiaobao Gong gives a risk warning, reminding the entrusting party that when establishing the contract, it should clearly stipulate what circumstances occur in the performance of the contract, and what kind of corresponding liability for breach of contract should be borne by one party, so as to avoid that there is no contractual basis for claiming that the other party bears liability for breach of contract due to the lack of detailed and specific provisions on the breach of contract. At the same time, Xiaobaogong Legal AI suggests that relevant clauses can be intelligently added to the contract, and users only need to add them with one click to improve the contract and avoid related risks!
The AI contract review can intelligently identify risks and provide reasonable reminders for possible precautions in the contract. As shown in the figure below, Xiaobao Gong reminds the client to pay attention to reviewing the trustee's signing and performance qualifications to avoid the client falling into unqualified financial management.
In addition to intelligently identifying contract risks and providing AI advice, Xiaobaogong also reminds the entrusting party of the contract disputes that may be caused by the lack of detailed breach of contract circumstances and the neglect of the review of the subject's qualifications with relevant legal cases, pushes judicial practice cases corresponding to risks, and can accurately select the case area accurate to the prefecture-level city, and reasonably judge the court's adjudication attitude to better predict and prevent its own risks.