How to deal with the loss caused by the futures company's failure to close the customer's account in time as agreed in the contract?

Trial rule

1. After receiving the notice of the futures company requesting additional margin, the customer added sufficient margin in time and closed the position on its own in time. In this case, if a futures company violates the contract and forcibly closes its position, causing huge economic losses to its customers, it shall bear the corresponding liability for compensation.

2. Futures traders shall bear the market trading risks among the futures market risks themselves. The loss of a futures trader includes both the loss caused by his own misjudgment and the loss caused by the forced liquidation of the futures company due to his fault, and the futures trader and the futures company shall bear the responsibilities respectively.

key

word

Private futures forced liquidation customer futures company additional margin notice contract stipulates forced liquidation economic loss compensation liability market trading risk

primary facts

On March 5, 2007, Fan signed a futures brokerage contract with Tianjin Sales Department (Tianjin Sales Department of Futures Brokerage Co., Ltd.) and its supplementary agreement of 1 2, entrusting Fan and Tianjin Sales Department to conduct futures trading for him according to the trading instructions. Article 6 of the contract stipulates that Tianjin Sales Department has the right to notify the margin ratio at any time according to the provisions of the futures exchange or market conditions, and the adjustment of margin by Tianjin Sales Department shall be subject to the announcement issued by Tianjin Sales Department or the adjustment of margin; Article 7 Agreement: Tianjin Sales Department has the right to independently increase Fan's margin ratio at any time according to its own judgment. In this case, the notice of increasing the deposit is sent to Fan separately; Article 8: Fan should always pay attention to the changes of his position, margin and rights and interests before issuing new trading orders or during his position; Article 10 stipulates that when Fan's risk rate is lower than 65,438+000% due to trading losses or other reasons, Tianjin Business Department will stop accepting Fan's account opening instructions and issue a notice of additional margin to Fan in the way agreed in the contract. Fan should immediately increase the margin or take measures to reduce the position before the market opens on the next trading day, otherwise, Tianjin Sales Department has the right to forcibly close some or all of Fan's open contracts without prior notice. Fan shall bear the handling fee for forced liquidation and the losses arising therefrom; Article 11 Agreement: If the deposit cannot be added in time, Fan shall take measures to reduce the position to meet the deposit requirements of Tianjin Sales Department, and try to avoid the forced liquidation measures of Tianjin Sales Department. Fan shall not claim rights and interests from Tianjin Sales Department on the grounds that the timing, price and quantity of forced liquidation of Tianjin Sales Department are not good; Article 14 Agreement: Tianjin Business Department sends daily transaction statement, margin adjustment notice, margin increase notice and other notices to Fan after the close of each trading day. After the contract is signed,

Before 65438+ on February 24th, 2007, Fan held 33 contracts of Cu0802, 369 contracts of Cu0803 and 10 contracts of Cu0804. On February 24th, 2007, at 65438, Fan closed 270 lots of soybeans by himself according to the notice of Tianjin Sales Department, reaching the margin level required by Tianjin Sales Department. After the closing of 15, Tianjin Sales Department will notify Fan of additional margin at 18: 50. On February 25, 2007, Fan received a deposit of RMB 65438+500,000 yuan at 65438+03: 48. At 8: 59 on February 25, 2007, 65438 Tianjin Sales Department forced Fan to close the short contract of 4 12 lots, and the closing prices were Cu0802 lots, 62 390 yuan/ton, 33 lots, Cu0803 lots, 6 1 250 yuan/ton, 369 lots and Cu0804 lots/kloc-0, respectively. On that day, the closing price of Cu0802 contract was 58 850 yuan/ton, that of Cu0803 contract was 57 970 yuan/ton, and that of Cu0804 contract was 58,050 yuan/ton. According to the price difference between the forced liquidation price and the closing price of the day, the price difference loss of Fan 33 lots of Cu0802 contract is 47 1 900 yuan, the price difference loss of 369 lots of Cu0803 contract is 605 1 600 yuan, and the price difference loss of 10 lots of Cu0804 contract is 139 500 yuan.

Fan filed a lawsuit on the grounds of forced liquidation of Tianjin sales department, demanding that Tianjin sales department be ordered to compensate for its losses.

Tianjin sales department argued that its forced liquidation was in line with the contract agreement between the two parties and should not compensate Fan for his economic losses.

Focus of controversy

After receiving the notice that the futures company requires additional margin, the customer will increase the margin in time and close the position on his own in time. In this case, the futures company shall be liable for compensation if it forcibly closes its position in violation of the contract and causes economic losses to its customers. If the customer also makes mistakes in judgment, should he bear part of the responsibility himself?

test result

The court of first instance found that Fan and Tianjin Business Department were in

The futures brokerage contract and supplementary agreement signed on March 5, 2007 did not violate relevant laws and regulations, and were legal and valid. Both parties shall fully perform the rights and obligations stipulated in the contract. In this case, although Tianjin Sales Department sent a notice of additional margin to Fan according to the relevant provisions of futures trading and the agreement between the two parties, it failed to provide Fan with a reasonable time for additional margin, resulting in the loss of Fan's forced liquidation, and Tianjin Sales Department should bear the corresponding liability for compensation. Fan's actual loss was 6.663 million yuan. Fan appealed to calculate the loss of 9027 yuan based on the lowest price on February 28, 2007, and the factual basis was insufficient.

The court of first instance ruled that Tianjin Sales Department compensated Fan for economic losses.

60%, 3,997,800 yuan; Reject Fan's other claims.

Fan refused to accept the first-instance judgment, and appealed that the first-instance judgment found the facts unclear and the responsibility analysis was improper. The evidence fully proves that,

On the afternoon of June 24th, 2007, Wang Jianling, manager of Tianjin Sales Department, informed him orally and in writing that due to insufficient margin, he needed to add margin or close 65 lots of copper contracts by himself. It immediately took measures to close the position and closed 65 pending copper contracts. Tianjin sales department also repeated the pending orders of about 65 lots of copper without authorization. Due to market reasons, 270 soybean contracts have been closed according to the requirements of Tianjin Sales Department, reaching the margin level required by Tianjin Sales Department; The judgment of the first instance held that the deposit of 1.5 million yuan was received on February 25, 2007, which was inconsistent with the facts. Tianjin Business Department fails to notify it of the additional margin within the time specified in Article 10 of this Contract; The judgment of first instance is wrong in loss calculation and responsibility sharing; This case was caused by the serious breach of contract by Tianjin Sales Department, which wantonly violated its right to pay the deposit and close the position on its own. It pays the deposit as agreed in the contract, and takes measures to lighten the position as agreed in the contract. However, the Tianjin Sales Department has disorderly liquidation and should bear all the responsibilities according to law. Therefore, it is requested to cancel the first-instance judgment and change the judgment to Tianjin Sales Department to compensate all its economic losses.

Tianjin sales department argued that its forced liquidation was in line with the contractual agreement between the two parties. because

On February 24, 2007, at 65438+, the copper contract held by Fan appeared daily limit, and the market changed, which made Fan's deposit insufficient. Fan's submission of the company check to pay the deposit on 25th was rejected because he could only pay the deposit from the registered settlement account. Therefore, the loss of Fan's account should be his own responsibility.

Tianjin Sales Department refused to accept the judgment of first instance, and appealed that the court of first instance found that the futures brokerage contract and supplementary agreement signed by both parties were legal and valid. According to the futures brokerage contract and related judicial interpretation, its forced liquidation behavior against Fan is in full compliance with the regulations, and its forced liquidation behavior should be legal and effective, and the losses caused by it should be borne by Fan; Fan's account loss is the market risk that he can't add margin in time because of the wrong trading direction, not because he can't provide reasonable time for adding margin. To sum up, the first-instance judgment should be revoked because it found the facts and applied the law wrong. Therefore, it is requested to cancel the first-instance judgment, change the judgment according to law, and reject Fan's claim.

Fan thinks that the appeal reason of Tianjin Sales Department cannot be established, and his appeal request should be rejected. Tianjin business department raised the margin substantially without authorization and forced liquidation from time to time.

The 4 12 copper contract is fully responsible for its losses.

The court of second instance found that the facts of the first-instance judgment were clear, but the applicable law was improper and should be corrected.

Judgment of the court of second instance: cancel the civil judgment of first instance; Tianjin Sales Department compensates Fan for economic losses.

9 027 yuan.

Tianjin Business Department refused to accept the judgment of the second instance and applied for retrial, claiming that the judgment of the second instance was wrong in applying the law. The judgment of the second instance held that the customer should be given a reasonable additional margin time before the compulsory liquidation, which has no legal basis and belongs to the error of applicable law; The basic facts identified in the judgment of second instance are not supported by evidence; The loss calculation of the second-instance judgment is wrong. Request to cancel the judgment of the second instance, revise the judgment and reject all the claims of Fan, and Fan shall bear all the litigation costs of this case.

Fan argued that the judgment of the second instance was well-founded in law and should be upheld according to law; The appeal of Tianjin Sales Department is inconsistent with facts, evidence and laws, and should be rejected according to law. First of all, there is no basis for Tianjin Sales Department to increase the margin ratio without authorization, and it is unreasonable to inform it that the time for adding margin is unreasonable. Secondly, the forced liquidation time of Tianjin Sales Department is unreasonable and illegal, depriving it of the right to reduce its position by itself, which is not only excessive, but also inconsistent with the convention and regulations; The black-box operation used by Tianjin Sales Department should be thoroughly investigated according to law. Request to dismiss the appeal and uphold the judgment of the second instance.

Judgment of the retrial court: cancel the civil judgment of second instance; Cancel the civil judgment of first instance; Tianjin Sales Department compensated Fan for his loss.

5 333 400 yuan; Reject Fan's other claims.

Comment on trial rules

1. According to the second paragraph of Article 38 of the Regulations on the Administration of Futures Trading: "When the customer's margin is insufficient, it shall add the margin in time or close the position by itself. If the customer fails to add the margin in time or liquidate the position by himself within the time specified by the futures company, the futures company shall forcibly liquidate the contract of the customer, and the relevant expenses and losses arising from the forced liquidation shall be borne by the customer. " Accordingly, three preconditions must be met for futures companies to take compulsory liquidation measures: first, the customer margin is insufficient; Second, the customer did not add the deposit in time as required; Third, the customer did not close the position in time. Only when the above three statutory conditions are met, the futures company has the right to compulsory liquidation. If a futures company forcibly closes its position in violation of the above provisions and the contract, thus causing damage to its customers, it shall bear corresponding responsibilities according to law. In this case, according to the time, quotation and quantity of Tianjin Sales Department's forced liquidation, combined with a large increase in the margin ratio in a single day, it can be concluded that Tianjin Sales Department forced liquidation not out of goodwill, but under the liquidation conditions that did not meet the legal provisions and contract stipulations. Therefore, it should be determined that the Tianjin sales department is at fault and should bear the corresponding compensation responsibility for Fan's losses.

2. The risks in the futures market include market transaction risk and market operation risk, among which the market transaction risk is borne by futures traders themselves. In this case, the losses caused to Fan include not only the losses caused by the model person's misjudgment of futures trading, but also the losses caused by the forced liquidation of Tianjin Sales Department. Therefore, the losses caused by Fan's own misjudgment should be borne by Fan, and the losses caused by the fault of Tianjin Sales Department should be compensated by Tianjin Sales Department. When confirming the fault liability scope of Tianjin Sales Department, it should be based on Fan's position and settlement data after the market closed on the 24th. That is, the difference between the loss amount (13066 500 yuan) of Fan's account after the forced liquidation on 25th and the floating loss of 7733 100 yuan after the liquidation on 24th (5333400 yuan) is the loss caused by the forced liquidation of Fan's account by Tianjin Sales Department, and it is only liable for this part.

Legal reference

Article 41 of People's Republic of China (PRC) Contract Law

If there is any dispute about the understanding of the standard terms, it shall be interpreted according to the usual understanding. If there are more than two interpretations of the standard terms, an interpretation that is unfavorable to the party providing the standard terms shall be made. If the standard terms are inconsistent with the non-standard terms, the non-standard terms shall be adopted.

Article 120

If both parties breach the contract, they shall bear their respective responsibilities.

Article 134th of the General Principles of Civil Law of People's Republic of China (PRC)

The main ways to bear civil liability are:

(1) Stop the infringement;

(2) remove obstacles;

(3) eliminating danger;

(4) returning property;

(5) restitution;

(six) repair, rework and replacement;

(7) Compensation for losses;

(8) Paying liquidated damages;

(9) Eliminating the influence and restoring the reputation;

(10) Apologize.

The above ways of bearing civil liability can be applied separately or in combination.

In trying civil cases, the people's courts may, in addition to applying the above provisions, admonish them, order them to make a statement of repentance, confiscate their illegal income and property, and may impose fines and detention according to law.

the State Council

Article 29 of the Regulations on the Administration of Futures Trading in 2007 shall strictly implement the margin system in futures trading. The customer deposits charged by the futures exchange to its members and futures companies shall not be lower than the standards set by the the State Council Futures Regulatory Authority and the futures exchange, and a special account shall be set up separately from its own funds.

The margin collected by the futures exchange from members belongs to the members, and it is strictly prohibited to use it for other purposes than the settlement of members' transactions.

The margin charged by the futures company to the customer belongs to the customer, and it is strictly prohibited to use it for other purposes except for the following transferable circumstances:

(a) according to the requirements of customers to pay available funds;

(two) to deposit a deposit for the customer and pay the handling fee and tax;

(3) Other circumstances as stipulated by the the State Council Futures Regulatory Authority.

Article 38

When the members of the futures exchange have insufficient margin, they shall add margin in time or close their positions on their own. If a member fails to increase the margin or close the position by himself within the time specified by the futures exchange, the futures exchange shall forcibly close the contract of the member, and the relevant expenses and losses arising therefrom shall be borne by the member.

When the customer's margin is insufficient, it shall add the margin in time or close the position on its own. If the customer fails to add the margin in time or liquidate the position by himself within the time specified by the futures company, the futures company shall forcibly liquidate the contract of the customer, and the relevant expenses and losses arising from the forced liquidation shall be borne by the customer.

Article 229th of the Civil Procedure Law of People's Republic of China (PRC)

If the person subjected to execution fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, he shall pay double the interest on the debt during the delayed performance. If the person subjected to execution fails to perform other obligations within the period specified in the judgment, ruling or other legal documents, he shall pay the delay in performance.

Article 36 of the Supreme People's Court's Provisions on Several Issues Concerning the Trial of Futures Dispute Cases

If the trading margin of a futures company is insufficient and it is impossible to add the margin according to the time stipulated by the futures exchange, it shall be handled in accordance with the trading rules; If the provisions are not clear, the owner of futures trading will forcibly close the open futures contract, and the losses caused by forced closing will be borne by the futures company.

If the customer's trading margin is insufficient and the margin is not added according to the time agreed in the futures brokerage contract, it shall be handled according to the agreement in the futures brokerage contract; If the agreement is not clear, the futures company has the right to forcibly close its open futures contract, and the losses caused by forced liquidation shall be borne by the customer.

Article 39

The amount of compulsory liquidation of futures exchanges and futures companies shall be basically equivalent to the amount of additional margin required by futures companies or customers. The losses caused by excessive liquidation shall be borne by forced liquidation.

Article 40

If a futures exchange forcibly closes its position on a futures company or its customers according to the trading rules of the futures exchange or the conditions, time and methods agreed in the futures brokerage contract, thus causing losses to the futures company or its customers, the futures exchange or futures company shall be liable for compensation.

The Supreme People's Court's "About Application"

Article 38 of the Interpretation of Several Issues Concerning the Procedure of Trial Supervision.

If the people's court hears a retrial case in accordance with the procedure of second instance and finds that the facts ascertained in the original judgment are wrong or unclear, it shall revise the judgment after ascertaining the facts. However, if it is convenient for the people's court that originally tried to find out the facts and solve the dispute, it may rule to revoke the original judgment and send it back for retrial; If the parties who must participate in the proceedings are omitted from the original trial procedure and a mediation agreement cannot be reached, and other violations of legal procedures are not suitable for direct substantive treatment in the retrial procedure, the original judgment shall be revoked and sent back for retrial.

Legal amendment

1. the State Council's Regulations on the Administration of Futures Trading in 2007 was revised on 20 12/0/24, and came into force on 20 12. The content of article 29 applicable to this case has not changed.

Article 38 applicable to this case has been changed to Article 35, and the content has not changed.

2. The Civil Procedure Law of People's Republic of China (PRC) was revised on August 3rd, 2065438, and came into force on August 3rd, 2065438 10/day. Article 229 applicable to this case has been changed to Article 253, and the content has not changed.

legal instrument

Civil appeal

Civil defense system

Civil appeal

Reply to a civil appeal

Civil petition

Lawyer's opinion

Civil first instance judgment

Civil second instance judgment

Civil retrial judgment

Fan v. Tianjin Sales Department of Futures Brokerage Co., Ltd.

Case information