Commercial Bank Debit Repayment Behavior Of Legal Issues

The fundamental proposition of the dissertation is: In the practice of loan-repayment of China's banks, if a borrower also has a deposit account at the same bank, what's the legal basis for the bank to deduct the deposit from the borrower's deposit account when the loan hasn't been repaid on time (deducting for outstanding loan). On this problem, there're a lot of controversies in the judicial practice, but legislation and theorists haven't provided a unified and clear legal basis.General opinion about this problem in China is that the bank can exercise right of set-off in the"contract law", including statutory right of set-off and contractual right of set-off. As long as meeting the condition of "Contract Law", the bank will be able to exercise"statutory right of set-off"directly. If the bank and the borrower have an agreement, then the bank can deduct deposit from the account to exercise"contractual right of set-off". There are also introduction about banker's right of setoff in common law and civil law, which are used to improve that in China.In this paper, I consider banker's right of setoff as an independent right established by the case law, and it can find a basis in the civil law. But in China's current legal system, deducting for outstanding loan isn't the right of setoff, because it doesn't conform to the nature of deposit legal relationship and the feature of setoff. The bank can't exercise statutory right of set-off, while it's not contractual right of set-off when there's an agreement. The bank can take some other measures to protect the creditor's right. But in perspective of the financial system and national economic development, we should establish banker's right of setoff, which exclusively belong to the bank.According to the argumentation of fundamental proposition, this dissertation divided into six parts: the preface, the first chapter, the second chapter, the third chapter, the fourth chapter and the conclusion.I reveal the practical significance of deducting for outstanding loan in the preface, and then analyze the current situation of research in the problem, the logical structure and the research methods.The first chapter gives some examples of the cases about deducting for outstanding loan, and explains the contradictions of current provisions. The second chapter introduces and evaluates banker's right of setoff in common law system and civil law system.The third chapter introduces the general opinion of legal basis of deducting for outstanding loan, and discusses the unreasonableness through analyzing of deposit legal relationship and system of setoff.The fourth chapter elaborates the legal nature of deducting for outstanding loan, and points out other measures to protect the banking creditor's right. It's necessary to establish banker's right of setoff to protect the interest of the bank.In conclusion, I sum up the perspective, the research method and the basic issue of the dissertation, and point out the necessity of banker's right of setoff in China.