Study On Collateral Obligation Of Banks

The core of law of obligation is the obligations in the relationship of debt. Collateral obligation, performance obligation and unreal obligation constitute the obligations in the relationship of debt. Collateral obligation, called collateral, but is really important. However, nowadays on the researching level of collateral obligation in educational circles, Chinese and foreign theorists still have much misunderstanding and disagreement on it. Seen from the attitude to collateral obligation in Chinese current practical circles, the courts'cognizance of collateral obligation and mastery over its limits is often inconsistent in different cases. Meanwhile, in the process of providing products and services to customers, the banks sometimes neglect to fulfill collateral obligation, so they lose lawsuits and compromise their reputation. Therefore, a study on collateral obligation is valuable for theory and practice.This article beginning with the definition of collateral obligation, combining with cases of collateral obligation related to banks, using positive analysis method, approaches a subject that banks fulfill their collateral obligation improperly, then puts forward improvement proposals from legal and financial aspects.In addition to the introduction and conclusion, the paper is divided into three parts. Part one, the definition of collateral obligation. Collateral obligation, is that, in the process of contract negotiation or fulfilling the contract, or after the contractual relationship becomes extinct, the party should bear the duties of attention, notice, assistance, security, protection, omission and so on, which in purpose of others'performance benefits and personal and property inherent interests for the principle of honesty and good faith. The characteristics of collateral obligation are as follows: its theoretical basis lies in the principle of good faith; collateral obligation is of uncertainty; which is non-independent and auxiliary; ect. The categories of collateral obligation are attention, notice, assistance, security, protection and so forth. Collateral obligation is different from performance obligation, unreal obligation and safety-guard obligation.Part two, positive analysis of collateral obligation of banks. According to the categories of collateral obligation, the thesis analyses ten typical cases relevant to collateral obligation in banking business, reaches some useful conclusions for further improvement proposals.Part three, improvement proposals for collateral obligation of banks from legal and financial aspects. The article divides this part into two respects. On one hand, from legal aspect, it points out that the theory of collateral obligation has some shortcomings in relevant legal documents, judicial application, legal precedent research and so on, then puts forward improvement proposals. The focus point is to explain legislative proposals of collateral obligation from the aspects of legislation style, liability type, legal consequence, etc. On the other hand, from financial aspect, the author ponders over standard control of banking business and safety management.