On Bank 's Duty Of Care And Legal Regulation

Financial risks happened frequently at the time of the financial institutes are under the scale development for the lack of supervisory system in different degrees. As the key hub of the financial market, banks undertake more risks and responsibilities than normal financial institutes.The capital structure of a bank not only includes the investment from the shareholders but also the deposited money from the public. So the risk responsibility becomes very important for concerning about the public interests. At present, the Article6th of the Commercial Bank Law stated in a general way that The commercial banks should guaranty the legal rights of the depositors from being harmed by any units or person. However, the regulations on the duties of care of the banks of the present law do not have detailed contents on the detailed legal rights of the depositors; or how could the bank guaranty such rights. Plus, it has no detailed statement on the difference of the requirements or the duties of different financial institutes. How could we define the range of the objects that need protections? How can we position the level of the depositor? How could the legal rights of the depositor being guaranteed? The duty of care of the banks should be required in a higher standard than the normal financial institutes or not? Those are the questions which need us to concern and discuss.In this paper, the writer analyzed the mentioned question in four different sections in accordance to the handled materials and his own understanding. The first section is the basic outline of the duty of care of the banks, it tells the concept, source, character and the developing reasons of it; it analyzes the reasons why there is conflict on the duty of care of the banks and views on how to solve it as well as the order regulation and co-opetition dealing principles; it also introduces three basic theories of the duty of care of the banks; Introduces three basic theories of the duty of care of the banks such as the principle on honest and trust theory on risky benefit and risk control theory.In the second section, the compare on analyzing the duty of care of the banks of China and USA has been raised. It first talks about the content of the duty of care of the banks in USA, clarifies the relation between banks and customers, detailed content of multi standard on the formation of the duty of care abroad and then makes some examples and analyze on the detailed regulations of the duty of care of our lawIn the third section, the problems in practice have been raised and analyzes the affirmation, standard and responsibility-free situations. Introduces and analyzes two classic cases of Xu Ting and Gu Jun to conclude the judgment standard of the duty of care of the banks. Analyzes the responsibility-free situations in three different occasions such as the third people mistake, card holder’s mistake and models and articles.In the last section, it clarifies how to perfect the legislation of duty of care and discuses the choice in accepting and balancing the legal interest and advices in legislation and further raised the detailed method in perfection in jurisdiction.