Comment On The First Case Of Chinese Gold

" Tthe first case of Chinese Gold " occurred in Shandong Ji’nan In2006,after the first Court and the second Court, has not yet been settled. This virtual "paper gold" transaction has generated intense conflict between the banks and investors,causing the attention of people for a long time. The bank in this case has the right to cancel the transaction between the two sides unilaterally or not, investors’ income from the transaction establishes unjust enrichment or not and the responsibility of both commitments have become the talk focus of people. The legal status of parties is the key to clarify the legal relationship, because in this trading process of paper gold, except the bank and Mr.Song, has no any other parties appeared, and the transaction always occurred between parties, so we should approve the bank as the legal status of the transaction, not the intermediary parties. Because the bank is a party of the contract, so the bank has the right to exercise the right of revocation according to the law, but the right of rescission is not arbitrary, it must be presented to the court, can not be revoked by oneself. Because the bank has the right to rescind the contract, so the contract established between Mr.Song and the bank will lose effectiveness because of the exercise of the right of rescission, which means, Mr.Song loss the legal basis to get the interests, therefore it establishes unjust enrichment, for unjust enrichment not only means to get interests has on law basis, but also including loss law basis afterwards. But, even if the bank is one of the parties, has the right to exercise the right of revocation, and Mr.Song constitutes unjust enrichment, the bank has no right to deducte the customer’s account balance directly, because the bank has equal status with civil subject essentially, does not have the corresponding authority, it is a violation of the individual property rights of citizens for the bank to deduct the customer’s account balance illegally, is a kind of tort. therefore, we should explore the specific rules and build legislation finally on the basis of theory and practice of research at home and abroad, curb the bank abusing its dominant position, protect the rights of the citizen.