Study On Civil Liability Of Unauthorized Using Of Savings Deposit

With the rapid development of economic and the continuous improvement ofresident’s income, the amount of savings deposit is increasing. Therefore, it causesmore deposit disputes between banks and depositors, especially the unauthorizedusing of savings deposit disputes. Because the saving contract is not included in thecontract law of China, the applicability of saving contracts disputes is uncertain.When the case of unauthorized using of savings deposit occurs, who will undertakethe responsibility becomes a controversy. Theorists and judiciary departments bothhave no unified conclusion, resulting that theorists have different opinions andjudiciary departments have different judgments on a same case. As the cases ofunauthorized using of savings deposit frequently occur and the laws about those casesare imperfect, the question who will undertake the responsibility becomes a problemthat urgently to be solved.The sporadic regulation on the unauthorized using of savings deposit disputes ofcontract laws cannot offer a good solution. The author believes that, making clear theownership of the savings deposit and the nature of the saving contract to research thesubject of the responsibility and imputation principles of the unauthorized using ofsavings deposit disputes is the way to solve the problems of those disputes. Thisthesis gives some suggestions to improve the laws when analyzing the questions ofimputation principles and impunity reasons, in order to give some guidance to thosecases.The first chapter of this thesis discusses the theoretical foundation of civilliability of unauthorized using of savings deposit. Firstly, it analyses the ownership ofthe savings deposit. Comparing the laws and regulations of our country on theownership of the savings deposit with that of civil law system and the common lawsystem, it turns out that the ownership of the savings deposit should belong to thebanks. Secondly, the thesis analyses the nature of the savings contract. It introducesthree main theories, including mixed contract theory; consume repose contract theoryand consumer lending contract theory, and proves the reasonable of the consumer lending contract theory. Finally, it analyzes the rights and obligations of the parties tothe contract, including the collateral obligation of the parties.The second chapter of this thesis discusses the subject of the responsibility of theunauthorized using of savings deposit disputes. Some scholars of China believe thatthe subject of liability for breach of contract only includes the banks. However, theauthor believes that the banks and the depositors are both have the possibility to bethe subject of liability for breach of contract. In the cases of unauthorized using of thesavings deposit based on bank cards, the merchants also have the possibility to be thesubject of liability for breach of contract.The third chapter of this thesis discusses the imputation principles of theunauthorized using of savings deposit. This question is not clearly defined in the lawof our country. The author discusses the imputation principles of the basis obligationand the collateral obligation, turns out that the principle of liability without faultshould be the main imputation principles and the fault liability principle should be theimputation principles of violating the collateral obligation. It should be noted that,when the merchants as the special subject of the responsibility, the imputationprinciples is the principle of presumption of fault.The fourth chapter of this thesis discusses the impunity reasons of unauthorizedusing of savings deposit. When banks refuse to fulfill the payment obligation, theyare not always undertaking the responsibility unless there are no impunity reasons.This kind of questions is related to the financial claim quasi-possession theory. Theremust be strict conditions when applying this theory to relief, especially for the banks,they must fulfill the prudential obligations.In this paper, the comparative analysis method and empirical analysis methodare used. In the first part of saving deposit ownership problems and the nature ofsaving contracts, the author lists and compares different opinions, combining with ourcountry’s actual situation, to make the conclusion more reasonable for our society realneeds. The empirical analysis method is used in the second part of this thesis and weuse examples to study the liability for breach of contract of the banks and thedepositors. This thesis is an attempting to solve the disputes of unauthorized using ofsavings deposit, expecting to support a new thinking and be helpful to solve actual problems.