"China Gold first case" concluded in Ji'nan "unjust enrichment"
the gold trading system provided by ICBC, more than 100 gold transactions have been carried out in a short ten days by telephone Commission, with a total amount of more than 2100 kg of gold, with a total amount of $320 million. About 21000000 yuan. However, he got more than two million huge sums of money, but was quickly drawn up by the bank with "unjust enrichment", and Zhang was also brought to court by the bank. The case involves a large amount of money and faces many legal gaps, high social concern and difficulty in hearing. It is called "the first case of gold in China".
in September 2010. The Ji'nan middle court made a trial decision by law to support the bank's 126 exchanges on the withdrawal of Zhang from June 29, 2006 to July 8th. An easy request for litigation. Defendant Zhang refused to accept the first instance and appealed to the higher people's Court of Shandong province. Recently, the Shandong provincial high court rejected the appeal and upheld the final judgment of the original judgment.
[b] 320 million yuan "paper gold" transaction triggered a lawsuit [/b]
May 30, 2006, the defendant Zhang and others applied to open a personal bank settlement account in Ji'nan, and opened an account of the gold trade in personal account (commonly known as "paper gold") through the ICBC online bank. The gold trading and trading system provided by the bank uses telephone banking to conduct gold trading. Since June 29, 2006, Zhang bought a far lower price than the bank's gold quotation, and then sold it near the bank gold price, that is, buying or selling repeated operations. By July 8th, 65 purchases were bought, buying gold 1067 kilograms, $100 million and 5 million yuan, selling 61 and selling 1067 kg of gold. The amount of more than 100 million 7 thousand million yuan, profit of more than 2100 yuan. Ji'nan industry bank believes that the above-mentioned transactions of Zhang and others have a clear and malicious nature of operation, and then draw off the profits from the transaction, and ask the court to revoke the 126 gold trading transactions of the defendant.
, however, Zhang believes that according to the trading system provided by the industrial and commercial bank, he is gradually operating according to the voice prompt of the normal telephone, and the input transaction command has been recognized by the system, and there is no violation and the transaction is valid and effective. According to the gold reference price provided by the bank, he chose to deal with or below the reference price in accordance with the trading rules. The Bank of Ji'nan has no right to revoke the gold sale that has been completed. He asked the bank to return the 2100 million yuan transaction proceeds.
[b] bank is the intermediary or contract party [/b]
for this case, one of the focus of the dispute between the former defendants is that the bank is the intermediary of the "paper gold" trading process or the parties involved in the sale.
"identifying the status and status of banks in the transaction process is very important for this case. Do not underestimate the difference of the name. If it is an intermediary, it provides a trading platform and has no right to cancel the 126 transactions. Only contract personnel have the right to exercise the right of revocation. " Zhu Fei, the judge of the case of the Ji'nan middle court, said.
the defendant Zhang believes that the Ji'nan industry bank provides a trading platform, a service intermediary for "paper gold", which is not a party to the sale. He has an agent relationship with the Ji'nan industrial and Commercial Bank of Ji'nan. And Ji'nan Yuan Yuan Industrial Bank insists that in these transactions, banks are trading with one party and Zhang is not intermediary.
Zhu Fei encountered a difficult problem: Although the bank "paper gold" business has been carried out for many years, there are no relevant laws and regulations at home, and the CBRC has not established any trading rules for this business.
through the investigation and analysis of all transaction records, Chu Fei discovered a strange phenomenon. Zhang's each "paper gold" transaction, only two parties, that is, the bank and Zhang himself, between the two sides is a direct transaction, without the assistance of the third party to complete. "
" from these records, the transaction is produced between Zhang and the bank. After meeting the transaction conditions, the bank and Zhang do the "paper gold" business, and the bank is not the intermediary between the customer and the customer. This details let Chu fly to determine that the bank is the 126 "paper gold" transaction of the party, between the bank and Zhang's "paper gold" transaction contract belongs to the sale contract.
[b] is unjust or legal transaction [/b]
the defendant Zhang believes that he has done gold trading according to the operating platform provided by the bank. All transactions are approved by the bank trading system. It is legal and effective. The bank has no right to revoke these transactions. He asked the bank to return more than 2100 million yuan. The proceeds of the transaction.
Zhu Fei found that, during the period from June 29, 2006 to July 8th, the defendant Zhang made 65 buying transactions in a way called "stop loss". The bid price set was lower than that of the bank quoted at the time. "He entrusted the purchase price between 141 yuan and 150 yuan, and the corresponding price of the bank is between 150.01 and 163.84 yuan, and the transaction price is 5.01 to 22 yuan lower than the corresponding bank instant gold quotation."
and when the customer deals in the way of the stop loss, the telephone bank will reminding by voice, "now you will establish a stop loss Commission, if the exchange rate you enter is superior to the immediate exchange rate, the entrustment will not succeed". It should not be lower than the bank's immediate gold offer. However, while Zhang chose the way to stop the loss, it was also far less than the instant gold price set to set the buying price. Obviously, it did not conform to the concept of "stop loss" and the rules of trading.
in the trial, Chu Fei found that, according to the rules of the ICBC "paper gold" transaction, the bank trading system should make a judgment of refusing to accept the transaction when the customer has set a stop loss entrustment method and set the gold price below the instant gold price. But the computer does not make the correct judgment because of the loophole in the system. As a result, illegal transactions are not discovered by the system and mistaken for normal transactions.
"industrial and Commercial Bank of the trading system at that time there was a loophole, the person was set to float up and down 20%, is a normal transaction, as long as no more than 20% is a legal transaction, the system will be confirmed, in fact, there are 20% illegal transactions, Zhang is drilling the hole, these transactions are not actually Silver Do it. " Zhu Fei told reporters.
by inquiring the details of the transaction records, Chu also found that Zhang once set the gold transaction price to a few yuan, or even 1 yuan to test the bottom line of the bank trading system. At the beginning, the system was unacceptable because the price of gold trading set by Zhang was too low. After that, Zhang continued to raise the bottom line of the price until he had tried to quote a lower price than the bank's immediate offer of 20%, which would also be able to conclude the transaction.
Zhu Fei said: "Zhang used the loopholes in the banking system to trade 126 times frequently, violating the principle of good faith. The law does not protect such transactions which violate the trading rules and violate the principle of good faith. "
for banks, because their trading system fails to make a correct identification and judgment, the result of abnormal transaction is a major misunderstanding of the bank through the gold trade and trading system of individual accounts. According to the fifty-fourth article of the contract law, one party of the party has the right to request a people's court or an arbitration institution to change or revoke a contract due to a major misunderstanding.
compared with the case of "Xu Ting", which took place in Shenzhen, Chu Fei also put forward his own opinion, "the two cases were all accused of using the loopholes in the bank and undue profit." But the difference is that the defendant Zhang did not really get the money, and the bank had promptly removed its improper earnings. Zhang is the use of the loopholes in the bank trading system and the imperfection of the trading rules, fluke and speculation, but it is only speculative, does not constitute a fraud and does not constitute a criminal offence. "