Study On Legal Issues In Guarantee Of Deposit Account

With the innovation and development of the times,there is a new type of guarantee in the banking industry which takes margin as the subject matter,that is margin account pledge guarantee.Because this new type of guarantee is more flexible and convenient in the establishment and operation than the traditional one,it is widely used in the banking industry at present.In practice,the court is mainly based on article 85 of the judicial interpretation of the security law : " after the debtor or a third party has specified its money in the form of special account,seal,margin,etc.,and handed over the creditor's possession as security for the creditor's rights,and the creditor may give priority to the repayment of the money if the debtor fails to perform the debt." Provisions To determine whether the bond account pledge is valid.However,due to the lack of legislation in China and the provisions of the judicial interpretation of this article is too simple,and the academic circles on the legal nature and effectiveness of the pledge of deposit account has not formed a unified standard.Therefore,judges have a lot of discretion in the trial of cases,resulting in the practice of the case will often appear different cases.The bank's secured creditor's rights can not be effectively guaranteed,there may be the risk that the security effect of the bank deposit account is denied by the court and the deposit in the account is enforced by the court.Therefore,how to correctly understand and apply the provisions of article 85 of the Judicial Interpretation of the Guarantee Act is the current solution The key to the problem.This paper intends to start with the provisions of article 85 of the judicial interpretation of the security law,combined with typical cases in practice,to analyze and discuss the legal nature,constituent elements and validity of the pledge of the security account.The first part makes clear the characteristics of pledge of deposit account by comparing pledge of deposit account with pledge of deposit certificate,deposit system the certificate of deposit,the system of deposit and the system of accounts receivable,and analyzes the problems existing in the application of the pledge of the deposit account in practice.The circumstances of the contract.The second part mainly discusses the different theories of the nature of the pledge of the deposit account,combined with the provisions of article 85 of the judicialinterpretation of the guarantee law and the general situation of social practice,analyzes the rationality,legitimacy and utility,and clarifies that the pledge of the deposit account belongs to the money pledge in the pledge of movable property.Although the nature of the pledge of the deposit account is still not clearly stipulated in the written law of our country,compared with the other three theories,it is recognized as the property of the pledge of money,which is in line with the development needs of our society and economy,and the risk and legal disputes borne by the bank are relatively small.Part three focuses on The provisions of article 85 of the judicial interpretation of the security law are carried out,and the elements of the establishment of the pledge of the margin account are analyzed and found to include: having the intention of the pledge in writing,the need for the deposit to be specific,and the need for the deposit to be handed over to the bank for possession.Combined with the case analysis,it is concluded that the floating of funds in the account will not affect the specificity of the deposit account,and the standard of transferring the creditor's possession is that the bank can actually control and manage the deposit account,and the debtor can not dispose of the deposit in the account at will.In addition,when the margin account is opened in the third party bank,the question of whether the margin account pledge is established effectively is also fully discussed and studied.The fourth part mainly studies the legal effect of pledge of margin account.Through the analysis of judicial practice and theoretical views,the scope of the subject matter of the pledge of the margin account is clarified,and the pledge of the funds in the account exceeding the amount of the guarantee and the interest generated by the margin during the guarantee period should be determined according to the agreement between the parties.Clear the effectiveness of margin account pledge is conducive to maintaining transaction security and social stabilityFinally,the paper concludes that the pledge of margin account as a special guarantee in the commercial field has a high value in financial practice,in practice should accurately apply the provisions of article 85 of the judicial interpretation of the security law to determine the legal nature of the pledge of margin account,the elements of establishment and security effectiveness.In the light of the problems in practice,some suggestions are put forward from the point of view of commercial operation: it is believed that the bank and the debtor should clearly agree on the guarantee nature of the deposit in the pledge contract or the pledge clause;secondly,when the bank and the debtor set up the pledge of the deposit account,they should have the contract or contract under the pledge of the "deposit account pledge"...