对一起存单挂失纠纷案的法律分析

发布时间：2018-07-10 03:50

本文选题：存单挂失 + 银行　；参考：《湖南大学》2011年硕士论文

【摘要】：银行作为金融机构的典型代表,在国家经济生活中起着特别重要的作用。现阶段我国正处于经济的转轨时期,金融体制的改革在不断推进,作为高风险行业的金融业,面临着各种各样的问题,而存单挂失纠纷是银行近几年来各类纠纷中最主要也最严峻的一项,研究存单挂失纠纷案件并对纠纷加以控制,是商业银行风险管理工作的重要内容。存单挂失纠纷案件,涉及的双方主体是作为金融机构的银行和储户,二者的基础关系是储蓄关系,储户将钱存入银行,银行发放存折或存单,储户的存款作为贷市供给量的主要部分,在银行的各项业务中起着基础性和本源性的作用。如果没有储户的存款,银行缺少了资金来源,也就无从发放贷款收取利息,无法形成银行利润。而存单挂失纠纷的频繁发生,大量的诉讼不仅耗费了银行的财力物力,加大了经营业务的成本,更重要的是极大的打击了储户对银行的信心,影响了银行的社会公众形象,危及银行的信誉,不利于金融市场的稳定。在存单挂失纠纷案中,双方的争议焦点集中在存款的所有权归属问题,银行对挂失人的身份审查问题,银行与储户的举证责任问题,以及在存款冒领风险发生以后,银行主张的对挂失人的给付效力是否满足债务人对“债权人之准占有人”的给付效力要件在当前的制度条件下,银行在存单挂失制度上还存在着缺陷,这既有主观上的原因,诸如法制观念的淡薄、金融风险意识不强、员工业务能力欠缺、员工操作程序有误等；也有客观上的原因,诸如司法实践中附加给银行的不合理的审查义务、法律制度的不完善、相关制度的不健全等。研究存单挂失纠纷,引导包括银行在内的金融机构有效地防范风险,不仅是推动金融生态和谐发展的有力保证,而且是促进我国经济社会持续发展的重要举措。
[Abstract]:As a typical representative of financial institutions, banks play a particularly important role in national economic life. At this stage, our country is in the period of economic transition, and the reform of the financial system is constantly advancing. As a high-risk industry, the financial industry is facing a variety of problems. In recent years, the most important and severe of all kinds of disputes in banks is to report the loss of certificates of deposit. It is an important content of the risk management of commercial banks to study and control the dispute cases of the loss of certificates of deposit. In the case of a dispute over the loss of a certificate of deposit, the parties involved are the banks and depositors acting as financial institutions. The basic relationship between the two is the relationship of savings. The depositors deposit their money in the bank, and the bank issues passbooks or certificates of deposit. As the main part of loan supply, depositors' deposits play a fundamental and fundamental role in bank business. Without depositors' deposits, banks would not be able to make loans to collect interest and generate bank profits. With the frequent occurrence of disputes over the loss of certificates of deposit, a large number of lawsuits not only consume the financial and material resources of the banks, but also increase the cost of operating business. What is more important is that they have dealt a great blow to depositors' confidence in the banks and affected the public image of the banks. It endangers the credibility of banks and is not conducive to the stability of financial markets. In the certificate of deposit report dispute, the dispute between the two sides focuses on the ownership of the deposit, the bank's identity examination of the person who has reported the loss, the burden of proof between the bank and the depositor, and after the deposit takes the risk of taking the lead. Whether the effectiveness of the Bank's claim to the lost payer meets the requirements of the debtor's payment to the "prospective possessor of the creditor" under the current system conditions, the bank still has defects in the system of reporting loss of certificates of deposit. This is due to subjective reasons, such as the weak concept of the legal system, the weak sense of financial risk, the lack of staff's ability to do business, the error in their operating procedures, and so on; there are also objective reasons. Such as the unreasonable obligation of examination added to the bank in judicial practice, the imperfection of the legal system, the unsoundness of the related system and so on. It is not only a powerful guarantee to promote the harmonious development of financial ecology, but also an important measure to promote the sustainable development of our country's economy and society to study the dispute of certificate of deposit report and guide financial institutions, including banks, to prevent risks effectively.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D922.281;D920.5;F832.2

【参考文献】