The Study On The Legal Liability Of Banks For The Deposit Missing

The progress of electronic technology brings not only the convenience of life,but also the subsequent risk.Such as, bank cards are easily stolen and forged. Account information is disclosed or deposit is transferred out illegally because of system vulnerabilities and hackers with the prevalence of online trading and mobile payment and so on.In fact,savings deposits is important for every family.The reason for deposit missing is very complex,often involved in criminal cases.The criminal cases are detected difficultly, and won’t been solved frequently, or the criminal suspects cannot pay depositors lose.When the bank depositors find that their own saving deposit is abnormal, they will pursue responsibilities to bank.In their opinion, firstly, the money is deposited in the bank.The depositors themselves have no-fault behavior and presume that banks have default behavior.Secondly,banks accept deposits is not merely to keep, but loan out to earn interest.Income comes with risks inevitably.At last, Banks have financial and material resources to bear risks and pay depositors’ lose.The deposit contract is nameless, and the nature is very controversial in the juristic field.The deposit contract is identified as consumption entrusting contract in continental law countries and consumption lending contract in Anglo-American law system countries. From the perspective of protecting the interests of the depositors, it is more reasonable to think the deposit contract as consumption entrusting contract.People save the money in the bank in order to keep,not for profit and not bear the more risk.In the deposit contract,the key problem is the deposit’ ownership.There are contradictory regulations in China’ laws. As people living standard rising, ability of the personal savings increasing and legal consciousness of property protection strengthening, more law experts think deposit ownership is transferred to the bank.The obligation is the precondition of responsibility.In the deposit contract, the bank carry most of the obligation, including the checking、payment obligations and the accompanying obligations.Collateral obligations have notice、protection、 cooperated and confidentiality obligation.Depositor’s obligations,no legal regulations,but in the daily business the degree of performance of these obligations influence directly the safety of deposit and exemption scope of banks.The bank will take different types of responsibility. Firstly, when the bank has disobeyed "commercial bank law" and will undertake corresponding administrative responsibilities.Second,the bank need to bear the liability for contracting negligence because of the violation of collateral obligation. Finally,to protect the interest of the depositors, the author thinks that the civil liability of the bank should be recognized as the liability for breach of contract.The author thinks it is more effective to use the strict liability.The author introduces the way of the bank to undertake the responsibility.The main way is to offer indemnity and continue to perform the contract, which is to pay the deposits and interest in the deposit contract.Because the banks have been loaded monetary obligation,there is no way to taking remedial measures.The banks’ exemptions mainly include fault of depositors and quasi-possession claims."Who advocate who proof" is still the main rules of evidence in such cases.When the fact cannot be distinguished between real and false,the parties need to take negative legal consequences because of evidence lack.