银行保证金质押若干问题的法律分析
发布时间：2018-09-13 12:54
【摘要】：保证金在银行业务中的重要性日益凸显,银行实务中关于保证金却有一些困惑和问题亟需厘清。本文提出法律对保证金的基本规定笼统且缺陷明显,先阐明了保证金在性质上属于动产质押的特例,再分析了银行设立保证金质押"特定化"与"移交债权人占有"两个构成要件,接着提出签订准确、规范和全面的《保证金质押合同》是保证金质押有效设立和使用的关键,最后澄清了质权人银行可依合同约定直接"扣划"保证金,并无违背流质契约原则。为了辩明实务中不同的认识,充分发挥保证金日益凸显的重要作用,本文尝试对保证金质押相关法律问题予以分析,以期对银行实务工作有所裨益。
[Abstract]:The importance of margin is becoming more and more important in banking business. However, there are some puzzles and problems in banking practice that need to be clarified. This paper puts forward that the basic provisions of the law on the margin are general and the defects are obvious. Firstly, it is clarified that the margin belongs to the special case of the pledge of movable property in nature. Then, the paper analyzes the two constitutive requirements of the bank's establishment of security pledge "specificity" and "transfer creditor's possession", and then puts forward that signing an accurate, standardized and comprehensive "bond pledge contract" is the key to the effective establishment and use of the margin pledge. Finally, it clarifies that the mortgagee bank can directly "deduct" the bond according to the contract agreement, and does not violate the liquid contract principle. In order to identify the different understanding in practice and give full play to the important role of margin, this paper attempts to analyze the legal problems related to the pledge of margin, in order to be of benefit to the practical work of banks.
【作者单位】： 三亚农村商业银行股份有限公司;英国布鲁内尔大学法学院;
【分类号】：D923.2;F832.2
，
本文编号：2241232
[Abstract]:The importance of margin is becoming more and more important in banking business. However, there are some puzzles and problems in banking practice that need to be clarified. This paper puts forward that the basic provisions of the law on the margin are general and the defects are obvious. Firstly, it is clarified that the margin belongs to the special case of the pledge of movable property in nature. Then, the paper analyzes the two constitutive requirements of the bank's establishment of security pledge "specificity" and "transfer creditor's possession", and then puts forward that signing an accurate, standardized and comprehensive "bond pledge contract" is the key to the effective establishment and use of the margin pledge. Finally, it clarifies that the mortgagee bank can directly "deduct" the bond according to the contract agreement, and does not violate the liquid contract principle. In order to identify the different understanding in practice and give full play to the important role of margin, this paper attempts to analyze the legal problems related to the pledge of margin, in order to be of benefit to the practical work of banks.
【作者单位】： 三亚农村商业银行股份有限公司;英国布鲁内尔大学法学院;
【分类号】：D923.2;F832.2
，
本文编号：2241232
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