Research On The Exercise Of Bank Set-off Right

Right of offset is essentially a bank with customers with each other between creditor's rights cases produced by the property legal rights,within the current legal system in our country still is not right to offset against bank establish perfect operation mechanism and application of standards,even in the field of civil and commercial laws and regulations such as the'contract law' in the specification has produced some rules about the right of offset,but in the judicial practice when handling disputes about the right of offset,it is difficult to balance the legitimate rights and interests of customers,Banks and the public,to properly solve these disputes,and in the legal system,lack of systematic specification,As a result,customers' own rights and interests are often damaged in real life,resulting in a serious imbalance between the interests of Banks and customers.In order to perfect the relevant legal system and operation mechanism of bank set-off right,and reasonably protect the common rights and interests of bank and customer,it is necessary to establish and perfect the legal system of set-off right in line with China's national conditionsThis article through to the theoretical basis and premise of exercising bank offset right,risk and limitations,and through analysis of the legislation present situation and the legal practice,puts forward some Suggestions for Banks to exercise of the right to offset,strict bank conditions of exercise of the right to offset and exercise program,right of set-off against bank in to execute a program execution objection to review shallow Suggestions,in order to offer the reference to perform.This paper mainly applies the literature research method to carry out a comprehensive review and study of relevant laws,judicial interpretations and academic achievements,and applies the induction method to summarize the general viewpoints in the academic field,and then discusses and studies the legal regulation of bank set-off rightThis paper is mainly divided into three parts:introduction,body and conclusionThe first chapter is the basic theory of the bank's right of set-off,including the premise and theoretical basis of the right of set-off.Premise one is the establishment of a business relationship between the bank and the customer.The bank claims to exercise the right of set-off has its theoretical basis:first,the credit and debt between the bank and the customer is mutual,both parties must be the same party,and the same party between each other debt and debt.In the practice of the bank's right of set-off,the deposit contract relationship and loan contract relationship are formed between the two parties when the customer who stores funds in the bank also borrows from the bank.Customers enjoy the right of claim on deposits,in general,is known as the "original claims," the Banks for loans which enjoys the right of claim of known as"cross claim",this kind of circumstance,the bank and customer as offset behavior of the parties,in the deposit contract relationship and the loan contract have the same legal status.Second,the bank claims the right of set-off is based on legal provisions or contract agreement.The second chapter is the risk and limitation of the bank's right of set-off.Withinthe current legal system in our country still is not right to offset against bank establish perfect operation mechanism and application of the specification,even in "contract law","bankruptcy law" and so on in the field of civil and commercial law has produced some rules about the right of offset,but when handling disputes about the right of offset in the judicial practice,it is difficult to balance the legitimate rights and interests of customers,Banks and the public,making Banks in the process of the right to offset possible hidden dangers.Banks often encounter two kinds of risks when they carry out the act of set-off:one is the risk of lacking the right to exercise the right of set-off;the other is the risk of improper implementation measures and procedures,which are restricted by legal factors and agreed factors.The third chapter is the current situation and legal practice of China's bank offsetlegislation.Domestic existing legal system is not right to offset against bank also build a special legal system,but in the "contract law","bankruptcy law" and other department is involved in the specific stipulation of right of offset,such as "contract law" article ninety-nine,article ninety-nine,"bankruptcy law" article 33,the law provides the right to offset a legal basis,also for Banks and other financial institutions in the implementation of offset behavior has provided a legal basis.However,from another point of view,the domestic legal system still needs to be further improved in the construction of the right of set-off.The fourth chapter is the judicial Suggestions on the exercise of the bank's right of set-off,mainly including the following four aspects:1.How to exercise the right of set-off when the borrower's subject changes;2.Whether the independent branches of the bank can deduct customers' deposits from each other to exercise the offsets;Iii The bank's exercise of the right of set-off in bankruptcy;How to avoid legal restrictions on the bank's right of set-off.