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On the personal deposits of legal nature

Author: ShaoXiaoHui
Tutor: WangSuJuan
School: North China University of
Course: Economic Law
Keywords: the individual deposits Property relations Claim relations bank notes
CLC: D922.281;D923.2
Type: Master's thesis
Year: 2009
Downloads: 91
Quote: 1
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Abstract

The last century since the 90’s, with the deepening of reform of the financial system, the issues such as non-performing assets give rise to the payment risk, making China’s financial sector, especially small and medium-sized financial institutions are faced with the problem of bankruptcy. Despite China’s "Commercial Bank Law" expressly provides the provisions of the insolvency of banks, but in practice, the banking supervisory body for the banking problems of the implementation of relief, and only a few of these banks to adopt the administrative closure measures, the bank has not yet to formally declared bankrupt by the court. However, with China’s accession to the WTO, China committed to opening the financial markets, a continuous influx of foreign banks and will gradually get almost the same scope of business and business qualifications with the domestic banks. This unexpected competition and challenges make the risk of bankruptcy of domestic banks from a theoretical become a reality. Once the bank bankrupt will be involved in the most extensive is the majority of the interests of depositors. In our country, the existing legislation and the theoretical circles on the legal nature of the individual deposits have two diametrically opposed views: the property theory and the claims theory. Under the two views, depositors have a different order and scope in the distribution of benefits when the bank bankrupt: According to the principle of bankruptcy law, if the individual deposits are defined as a property relationships, that is, the depositors rather than the bank has the ownership of the deposit, then the bank becomes insolvent, the personal bank deposits would not be the property of bankruptcy, and the depositors can use "the right to recover" direct to recover all of their own property before the distribution of bankruptcy property , because property rights take precedence over claims; If the individual deposits are defined as a claims relationships, that is, the bank rather then the depositors have the ownership of the deposit, then the bank becomes insolvent, the personal bank deposits would be the property of bankruptcy, and the personal depositors will join in the distribution of bankrupt property as the creditors of the bank.It can be seen that the legal nature of personal deposits will directly determine the depositors’ distribution of benefits when the bank goes bankrupt, so we have a necessity to define the legal nature of the individual deposits. Shortly before the introduction of the "property law" has not a clear definition about the legal nature of the individual deposits, which makes the controversial on the individual deposits’ legal nature is continuing. On the base of the comparative analysis between the two views, this paper will learn from home and abroad in the relevant legislation and practice experience, to conduct in-depth analysis on the legal nature of individual deposits, and ultimately, it will be position on the relationship of claims. On this basis, this paper makes the personal deposits as a "Priority Notes" which issued by banks in the legislative level, and will make the corresponding comments and analysis on the specific issues involved in from a legal point of view.

On the personal deposits of legal nature

Abstract

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