Research On The Legal Issues Of Bank Account Pledge

Due to the development of economy and the need of financing,bank account pledge has been widely used in the financing business of banks.However,due to the lack of legislation and the irregular operation of bank account pledge,the realization of pledge right under the mode of bank account pledge has great uncertainty,which brings great transaction risk and legal risk to the pledgee.Up to now,there is no written law related to bank account pledge in China,so it is necessary to think about and clarify it in theory and practice,and to find a reasonable way for its application in the current legal system of our country.In view of this,this paper discusses the legal issues of bank account pledge,which is divided into four parts.In the first part of this paper,the author expounds the current situation of bank account pledge in China’s legislation and introduces its current situation in China’s judicial practice which classifies the bank account pledge into real account pledge and empty account pledge according to whether there is funds in the account when the pledge is set.This part sorts out the typical litigation disputes caused by bank account pledge,and points out that there are different understandings on its legal nature and there are obstacles in the legalization and disputes in the supply path of the system.In the second part of this paper,on the basis of the first part,the author combs and analyzes four kinds of theories about the legal nature of bank account pledge in the academic circles of our country.In this part the author enumerates and analyzes the legislative and judicial cases about bank account pledge in foreign countries,and raises the query on the theory of money pledge from the perspective of the actual use of funds.On this basis,the author clarifies that the legal nature of bank account pledge belongs to right pledge,which is to build a clear theoretical basis for the following specific rules.The third part of this paper discusses the necessity of the legalization of bank account pledge from the perspective of practical needs and legal system needs,and then discusses that there are obstacles in the feasibility of the legalization of bank account pledge,such as the limitation of legal principle of real right,the pledge of future floating creditor’s rights,and the violation of legal logic by the debtor and the pledgee as the same person.In this part,through the theoretical research,it is concluded that the conflict between the legal principle of real right and bank account pledge should be solved by softening or easing the legal principle of real right.As for the obstacles to the pledge of future floating creditor’s rights,first of all,through theoretical research,the author conclude that the theoretical path to the subject claims of empty account pledge can be obtained.Secondly,because the current legislation and judicial practice of our country recognize the legal effect of the pledge of future claims,and the bank account pledge does not belong to the floating guarantee in theory,the obstacles can be solved.For the obstacle of violating the legal logic of debtor and pledgee are the same person,through the research of the same situation in English law and German law,it is concluded that debtor and pledgee are the same person do not violate the legal logic,and because the current legislation of our country does not clearly stipulate and forbid it,the court also gives the legal effect of debtor and pledgee are the same person in the practice of deposit receipt pledge in our country Recognition,therefore,can be solved by judicial interpretation,case guidance or detailed legislation.In the fourth part of this paper,on the basis of clarifying the legal nature of bank account pledge and solving the obstacles to the legalization of bank account pledge,the author makes a comparative study and analysis of the two legalization paths applicable to bank account pledge,and proposes that the legislation of the civil code should be taken as the legalization path of bank account pledge,and the bank account pledge system should be included in the property right of the civil code being compiled.In order to fundamentally solve the problem of its legal status,we should clarify its specific rules.On the basis of clarifying the legalization path of bank account pledge,the author puts forward the idea of constructing specific rules in legislation.In this part,the author describes the rights and obligations that should be included in the legal relationship of bank account pledge,and puts forward that the establishment of bank account pledge should take the form of written contract,and the publicity way should adopt the way of registration and be improved on the basis of the publicity way of accounts receivable pledge,and the realization way should adopt the way of directly deducting the funds in the pledged account to guarantee the account pledge right implementation.