Research On The Improvement Of The Bank's Right Of Set-off In China

The bank's right of set-off ,as an important way to achieve the realization of creditor's rights is specific application in banks. The bank's right of set-off not only has the function of guarantee but also secures the realization of creditor's rights, maintaining financial order and stability. Whether common law or civil law have recognized the bank's right of set-off. There are some general clear set-off provisions in China's current system. But we still lack some important concepts and specific system design. At the same time, The bank's right of set-off in China is still a blank. The acts of bank's debit repayment are considered acts of bank's exercising the rights of set-off in practice. In China, the legislative level of the provisions relating to deduction repayment is low. On the one hand ,The system of bank of set-off is absent in the legislative level, on the other hand, Banks abuse the right of set-off in practice. Therefore, how to build a reasonable and sound banking off-set system is a current problems which is needed to be solved urgently in China. The author firstly analyses the basic theory of Bank of set-off system, then combines our county'current situation, and finally puts forward sound proposals. The author hope it will be benefit to building our country'bank of set-off system. This paper is divided into four parts, In the first part , the author focuses on the legal characteristics of Bank of set-off on introducing the basis of the concept of the right The legal characteristics of Bank of set-off contain: Specificity of the claims and liabilities between banks and their customers, the principal has the exclusive right to exercising the rights of set-off which involved in multiple legal relationships. Finally, the author analyses the unique features and important practical significance of bank of set-off. In the second part, The author uses the method of comparative analysis, and also points out the primary constituent elements of bank of set-off, namely the premise and base of the exercise of the right of bank of set-off , it is the claims and liabilities between the banks and their customers; Finally , the author analyses their specific composition of elements in different types of banks of set-off . In the third part, the author firstly analyses the shortcomings of the bank account and then finds the regulations of the bank of set-off system are short of some important concepts. Banks offset system in China is still a blank. In China, the legislative level of the provisions relating to deduction repayment is low.. In the fourth part, the author puts forward the recommendations which perfect bank of set-off system in china. Firstly, It is necessary to perfect bank of set-off system , and we should take advantage of the principle of balance of interests to improve the bank of set-off system. Taking into account the principle, we should build the bank of set-off system. Also basing on the principle, we should limit the exercise of the bank of set-off system. In the specific proposals, the author think firstly we should improve the bank account system, such as raising bank accounts at the legislative level, setting the agreement to establish separate accounts, clearly defining the nature of bank accounts and adding the new types of bank accounts. Secondly, we should clearly regulate and limit the bank of set-off .Then the author makes specific recommendations on the three types of restrictions on the bank of set-off. Finally, the author point that protecting the rights of bank and customer not only needs the system specification design, but also needs the self-discipline between the bank and customer. And the customers should enhance self-protection awareness. Bank should strengthen their self-binding.