Research On The Pledge Over Bank Accounts

The pledge over bank accounts, as a new way of security in economic activities, was becoming prevalent since China joined the WTO and the foreign banks introduced. In the very beginning, the pledge over bank accounts were applied to financing of corporates’ huge projects, supplement to other traditional ways of security. In recent years, with the rapid development of financial innovation, the pledge over guarantee deposits accounts are popular in the security system of banks, especially in the events that cooperation between banks and financing guarantee company. There are often debtor, creditor(pledgee), pledger(sometimes the same to the debtor), the debtor’s other creditors without security involving in the pledge over bank accounts. Interest conflicts among pledgee and creditors without security are prominent, and are also the origin of conflicts in practice, which manifest as the currency in bank accounts is frozen or executed by courts owing to the pledgers’ creditors without security, and the rights of pledgee are damaged so that the lawsuit brings about. However, there are only two kinds of pledge over accounts( the export taxation redundant custody accounts and NRA) in China’s laws. Therefore, how about the legal effect of pledge over bank accounts contracts? Is the pledge legitimate? At present, judges often makes verdicts by quoting the Article 85 of The Supreme Court’s Explanation about the Application of Security Law of the People’s Republic of China in dealing with the disputes related to pledges over bank accounts, especially in the events of the pledge over guarantee deposits accounts. But in practice, there are not only the pledge over guarantee deposits accounts, but also the pledge over bank accounts applied in financial leasing and factoring, can they apply to the Article 85? Controversy in practice also makes scholars study on this kind of pledge gradually, while the research is still at the beginning stage.Hence, this paper will do study on the pledge over bank accounts through the contents-analysis method, the comparative analysis method and the value-analysis method, in order to offer some contributions in the field of security law. This paper is divided into three chapters:Chapter I will introduce the situations and mechanisms of the pledge over bank accounts in practice. Then, by combing and analyzing the lawsuits of the pledge over bank accounts, as well as the comparison of opinions about the nature of the pledge over bank accounts, plus the introduction of the pledge over bank accounts in foreign countries, this paper will answer the basic question of the pledge over bank accounts: can the bank accounts be the object of the pledge? What is the nature of the pledge over bank accounts? This paper will also compare the similar concepts between the pledge over bank accounts and the pledge over accounts receivable, deposit certificate.Chapter II will discuss the reasons of the pledge over bank accounts’ legalization from the three aspects like the practical meaning, legal economics and the solving of theoretical barriers. Particularly, this part will emphasizing on making the analysis of the solving of theoretical barriers.Chapter III tries to make suggestions on the pledge over bank accounts’ legalization, like establishing the specific rules of the pledge over bank accounts. Additionally, for the time being, in order to solve the disputes of pledge over bank accounts, in dealing with the disputes regarding the pledge over guarantee deposits accounts, the Article 85 can be applied temporarily, while there is need to clarify the key constitutive requirements of the Article 85.