Analysis On Possession Of Deposit

With the increasing prosperity of banking business, various credit cards, debitcards, etc are widely applied; therefore, new types of property crimes about illegallyinvade others’ properties with bank cards such as credit cards and debit cards aregradually increased. However, controversies about the new deposit related crimes arealso generated in both academic field and judicial practice. For example, what’s thecrime constituted if an actor reports the loss and possesses others’ funds under hisown account? And who should possess the deposit remitted into the account due tobanking system error or other’s false remittance?By a statement of main points toward these cases and an analysis ofcontroversial crimes, it can be discovered that the root cause for these controversies isthe different views and understandings toward “Possession”. Therefore, to clarify thedeposit possession definition is the key to have the controversies solved. This paperdivides the deposit issue into the possession of deposit cash and that of deposit credit.It’s proposed that cash deposited in bank is possessed by banks while credit ispossessed by the people who exclusively send requests such as remittance, transfer,etc to the bank.To analyze deposit possession issue, legal nature of deposit must be clarifiedfirst. For the legal nature of deposit contract, controversies exist in Legislative andjudicial practices, among which, two main ideas are real contract and credit contract.This paper agrees the mainstream view credit contract, which regards deposit contractas credit contract. More specifically, after depositor banks his property, credit-debtrelationship is established between depositor and the bank due to deposit contract. Bythen, depositor obtains the credit which equals to the cash and interests in his account,and he can draw out or transfer the deposit with bankbook and password in bankwindow or ATM to exercise his credit. The account holder is the creditor, bankbookor credit card is the credit certificate, and the bank is the debtor. After defining thelegal nature of deposit contract as deposit credit, this paper then solves the depositpossession issue. For deposit possession, various views exist at home and abroad. Among which,the main ones are depositor possessed, bank possessed, depositor-bank jointlypossessed, and depositor-bank distinctively possessed. Each theory has some merits,but they have shortages meanwhile. Based on the deposit cash and deposit creditimplication contained in the term “deposit”, this paper divides deposit possession intothe possession of deposit cash and possession of deposit credit accordingly. Depositcash is possessed by the cash manger, which is the bank. By a statement of whetherdeposit credit can be possessed, how to possess it and how to transfer it, this paperproposes that deposit credit is possessed by the people who exclusively advocate thecredit to the bank.On the basis of the discussion about deposit possession, this paper analyzes theproperty crimes put up with in the Introduction, and makes a distinction between onecrime and another, and between crime and non-crime. By this way, the crime ofreporting loss and drawing out others’ deposit under the actor’s account can bereasonably convicted, and cases such as entrusted insurance claim and falseremittance can be better solved. An actor reports the loss of other’s deposit under hisown account equals to the actor is entrusted to manager other’s property, whichestablishes an entrust relationship between the actor and the depositor. If the actorrefuses to pay off the deposit at neither bank counter nor ATM, propertyembezzlement crime is convicted. For the case of entrusting insurance company’sclerk to compensate, it amounts to the clerk illegally possesses the insured’s depositcredit with underhanded means, which is convicted larceny or credit card fraud crime.As for the false remittance case, credit of the additional remitted deposit is stillpossessed by the account holder who receives the false remittance. If the actorpossesses the deposit and refuses to pay off, embezzlement crime is convicted.