Study On Legal Issues Related To Deposit Pledge

In judicial practice,most courts did not conduct an in-depth analysis of the nature of deposit pledge,but directly identified deposit pledge as special movable property pledge or money pledge and applied Article 85 of the Judicial Interpretation of the Security Law.However,for the "specification" and "transfer of possession"requirements stipulated in this article,there are different recognition standards and different interpretation paths in different transaction models.How to accurately grasp this is the source of controversy injudicial practice.Deposit pledge is a special type of account pledge.The difference is that in the account pledge,the pledger can continue to use the funds in the account,while in the deposit pledge,in order to meet the specific requirements,the pledger cannot continue to use the funds in the account which shall be strictly monitored by the pledgee.Deposit pledge refers only to the pledge of the real account:the pledge satisfies one of the elements for establishment only when the agreed amount of deposit is deposited in the agreed account.There is an essential difference between deposit pledge and certificates of deposit pledge or account receivable pledge.Rules for the latter two cannot cover the particularity of deposit pledge and therefore,should be distinguished strictly and not be applied by analogy.Through the typed summary of the deposit pledges that have been disputed in practice,it can be divided into three structures:general transaction mode,fund pool transaction mode and creditor non-deposit bank transaction mode.Understanding the nature of the deposit pledge is a prerequisite for exploring its elements for establishment.Under the existing legal framework,it is more appropriate to adopt the movable property pledge theory.On the one hand,a specific deposit account can avoid the circulation of funds.The funds can be analogized to the sealed cash,and the possession and ownership can be separated.On the other hand,in deposit pledge,the pledgor did not have declaration of intention to transfer the ownership of deposit,and Article 85 of the Judicial Interpretation of the Security Law provides the legal basis for overruling the traditional legal rule:money possession confers the entitlement attached thereto.Not only that,a majority of judgments also adopt the movable property pledge theory,which confirms the viewpoint of this articleAs a special type of movable property pledge,deposit pledge shall meet the three elements:written pledge agreement,specialization,and transfer of possession to exert the security effect.The validity of a security pledge contract or pledge clause and the transfer of possession should be distinguished.If the possession is not transferred because of the pledger,resulting in the pledgee not being able to receive priority compensation from the deposit,the pledgee has the right to require the pledger to bear the contract’s non-performance obligations.As a special pledge of movable property,a deposit pledge contract shall not only have the contents of a general pledge contract but also have its unique terms.Specification includes account specification and fund specification.The former means that the funds in the deposit account should be withdrawn from the field of circulation,and the special funds should be used exclusively to become a dominant object;the latter means that the deposit should be independent of the other property of the pledger and the pledgee,and the total amount of funds should always not exceed the agreed amount.Specification is not equal to fixedness.Allowing funds in the account to float to a certain extent is the guarantee for the vigorous development of deposit business,and can be explained by the floating mortgage theory.After the floating margin is "crystallized",the pledgee can get priority compensation within the balance.In the mixed trading model,the margin should maintain a one-to-one correspondence with the main debt to prevent confusion Concerning the transfer of possession requirements,the two parties agreed that the pledger could not withdraw the deposit in the account without the creditor’s consent,then it could be determined that the creditor had taken possession of the deposit account Regardless of the name of a deposit account is the pledgee or the pledger,it is necessary to sign a supervision agreement to limit the rights of the bank account owner to meet the substantial requirements for transferring possession.In the floating trading model,when the situation for realizing the deposit pledge occurs,the pledgee can obtain control of the deposit to meet the requirements for transferring possession.In a transaction model in which the creditor is not a deposit bank,the possession can be transferred by instructed delivery.The bank is the direct possessor accepting the creditor’s commission,and the creditor is the indirect possessor.Due to the relativity and concealment of the internal fund supervision agreement,an external third party cannot know its existence,and the effectiveness of publicity is weakened.Therefore,the word "deposit" may be marked on the account to meet the requirements of publicity.