Account Transfer Mit Mistakes

With the intensive daily trading activities,the non-cash payment,which is more and more popular because of its convenience,safety and speed,gradually replace the cash.Especially in a variety of banking business,the number of account opening,the amount of deposit,transfer and automatic payment are increasing every year.It can be said that the bank's payment and settlement business is so close to every person's daily life,that its importance is self-evident.However,while the bank brings us great convenience,it also has brought us lots of troubles.Actually the numbers in bank account is functionally similar to the cash.That is to say,it can be used as a payment method for money debt.But,due to the deposit amount is only presented in the passbook or bank card,and the account is always managed by the bank,and the transfer process is complicated,therefore,when account amounts are transferred mit mistakes,then the parties often become confused and donnot know who to claim.These cases of account transfer mit mistakes are partly due to the fault of the transferor or the payee,and partly to the fault of the bank.In practice,such cases of unjust enrichment,which often involve many parties,are always a difficult problem for the judges.In this paper,I try to sort out the series of account transfer mit mistakes,combined with judicial practice cases and take “whether there is a instruction of transfer or not” as a standard to divided these cases into two major groups.Underdifferent cases,a reasonable solution to the return of unjust enrichment is provided.The study of this issue mainly involves two major areas:First is bank transfer business.Due to the fact that most scholars in civil law field are not familiar with bank transfer business,and there are few laws and regulations about the rights and obligations among parties or about non-cash payment services,so many issues are still controversial.Therefore,if we cannot reach consensus on the problems,we cannot discuss the different types of cases,because it may lead to very different results.With the method of comparing German law,I try to make a qualitative analysis of the basic problems of transfer.For example,the contract between the bank and the transferor is a paid commission contract.The transferor can instruct the bank to make an abstract debt promise to a third party.At the same time,based on this commission contract the bank also can request the necessary expenses and remuneration.For another example,bank bookkeeping(generally represented by an increase in the number of books)makes sense,in which the credit(the bank's debt to the customer)is an abstract debt promise,there is no reason;and the debit(bank to customer's debt)is only declarative.These definitions affect the burden of proof,the customers' rights and obligations to banks.Second is the question of the return of unjust enrichment.It is only meaningful to discuss the issue of the return of unjust enrichment on the basis of a clear legal framework of transfer.This involves the unjust enrichment of the triangular relations.Its particularity lies in "instruction".It is not only the customer's transfer authorization to the bank,but also the determination of the purpose of the payee to pay.In other words,in the relationship of transfer,there are three variables that will affect the return of unjust enrichment:(1)instruction;(2)compensation relation;(3)basic relation.Besides the instruction is related to the question,whether we should protect the trust of the third person or not.It will involve the appearance responsibility of the right.In the transfer case,the main judgment is whether it is accountable.Therefore,this paper divides these cases into two categories: “the existence of instruction” and“the lack of instruction”.At last,there are 11 types of detailed cases.In “the existence of instruction”: In case 1 there are no compensation relation,so the bank has the right of unjust enrichment claim to transferor;in case 2 there are no basic relations,so the transferor has the right of unjust enrichment claim to payee;there is a double defect in case 3,namely the lack of compensation and the basic relations,so the bank has the right of unjust enrichment claim to transferor and the transferor has the right of unjust enrichment claim to payee.In “the lack of instruction”: When it lacks instructions and the appearance of the right cannot be attributed to the transfer person(case 4-7),the claim of unjust enrichment is basically unified,that is,the bank has the right of unjust enrichment claim to payee.There is no unjust enrichment between the bank and the transferor,the transferor and the payee.But when it lacks instructions and the appearance of the right can be attributed to the transfer person(case 8-11),the problem of unjust enrichment is soluted in the payment relationship.For example,in case 8 and 9,the bank has the right of unjust enrichment claim to transferor.In case 10 and 11,the bank has the right of unjust enrichment claim to transferor and the transferor has the right of unjust enrichment claim to payee.Different from the above 11 cases,the key point in case of "anonymous transfer" is to determine,whether the instructions is a form of "apparent indication" to the bank.If an apparent indication is made up: When the payee is malicious,the account holder has the right to claim compensation to the payee or the fake;When the payee is in good faith and also the basic relationship exists,then the account holder only can claim the right in the tort law to the fake,and if the basic relationship does not exist,refer to the case 2.1.If an apparent indication is not made up,then refer to the case 4or case 6.