Research On The Pledge Over Bank Accounts

The pledge over bank accounts in our country started in the reform and opening up,early mainly used in large-scale project financing areas,then as guarantee means of an ordinary financial loans in recent years.However,the civil legislation in our country does not specify the pledge over bank accounts,there is also a limited literature on how to deal with the pledge.In practice,courts mostly reckon the cases of the pledge over bank accounts based on the Article 85 of The Supreme Court’s Explanation about the Application of Security Law of the People’s Republic of China,however,the object of the article is actually the pledge over cash,the Article 85 has produced many difficult problems in practice,therefore,the relationship between the pledge over bank accounts and the pledge over cash needs to be clarified.In view of this,this essay systematically discusses the basic problems such as the definition and nature of the pledge over bank accounts,and summarizes the tendency of the judgment,and attempt to achieve the legalization of the pledge over bank accounts by explaining the Article 85.This essay mainly includes four parts except the introduction:The first part defines the pledge over bank accounts from the perspective of practice and comparative law,and systematically discusses the nature of the pledge over bank accounts on the basis of various theories.From a theoretical point of view,the controversy of the nature of the pledge over bank accounts is actually the controversy of the subject of the pledge,and the core of the dispute lies in the " the ownership of the money is coincidence with it’s possession " rule,so this section starts with the rules,and focuses on analysis that bank accounts can not constitute an exception to the rule,and concludes that the pledge over bank accounts belong to the pledge over rights.The second part mainly discusses the relationship between the pledge over bank accounts and the pledge over cash in guarantee bank accounts.The pledge over cash in guarantee bank accounts is a type of pledge over cash and a new guarantee way between banks and guarantee companies in loan business.It is widely used in real estate mortgage loan and business risk guarantee,but the pledge over cash in guarantee bank accounts and the pledge over bank accounts are two different kinds of guarantee ways,they have significant differences in the nature,the floating of money,the scope of application and the method of publicity.Judging from court adjudicative documents,due to the lack of legislation,judges have to include the case of the pledge over bank accounts within the range of the pledge over cash in guarantee bank accounts,which leads to the integration of the two pledges,namely,the pledge over cash in guarantee bank accounts gradually absorb the characteristics of the pledge over bank accounts.In the context of the integration of the two pledges,the court reckons validity of the pledge over bank accounts with the Article 85,which greatly restricts the types of cases of the pledge over bank accounts and hinders it’s guarantee function.The third part mainly discusses the barriers of the legalization of the pledge over bank accounts.From the theory and judicial practices,there are mainly four barriers of the legalization of the pledge over bank accounts: First,because our country’s legislation adheres to real right legal doctrine principle,the types of the right are determined by law,and pledge over bank accounts has not yet been expressly recognized by law,which fundamentally denied the legitimacy of pledge over bank accounts.Second,the pledge over bank accounts has the characteristic of floating charge,however,our country’s legislation just recognize some types of floating charge,and the pledge over bank accounts is not included.Third,the pledge over bank accounts has a lack of a method of proclaiming the right.Fourthly,the agreement on the direct deduction of funds in the account in the pledge over bank accounts is in violation of the terms of fluid medium.Of the above four barriers,onl y the first and the third can be accepted,and lacking of a method of proclaiming the right is still essentially due to the illegal status of pledge over bank accounts,therefore,the material barrier of the legalization of pledge over bank accounts is the real right legal doctrine principle.The fourth part mainly discusses the realistic method of the legalization of the pledge over bank accounts.The material barrier of the legalization of pledge over bank accounts is the real right legal doctrine principle.Therefore,the discussion on the basis of legislation is the fundamental way of the legalization of the pledge over bank accounts.From the angle of system construction,our country’s legislation should reckon the registration as methods of lying and publicizing of the pledge over bank accounts,and recognize the direct deduction of funds in the account as a way of achieving pledges.However,given that the integration of the pledge over bank accounts and the pledge over cash in guarantee bank accounts and that the courts mostly reckon the pledge over bank accounts under the Article 85,so the discussion on interpretation may has more practical significance.In the context of the integration of the pledge over bank accounts and the pledge over cash in guarantee bank accounts,the only way of getting validity of real right is relying on the Article 85,that is,the pledge over bank accounts is recognized by judicial practice by clarifying the exact meaning of "specialization " and "transfer of possession" of the Article 85.