“中国黄金第一案”评析

发布时间：2018-03-18 12:23

本文选题：纸黄金　切入点：不当得利　出处：《湖南大学》2013年硕士论文　论文类型：学位论文

【摘要】：2006年发生在山东济南的“中国黄金第一案”经过一审、二审,至今尚未尘埃落定。这种虚拟的“纸黄金”交易在银行和投资者之间产生了激烈的纷争,长时间引发了人们的关注。案中的银行是否有权单方面撤销双方之间的交易、投资者因交易所得的收益是否成立不当得利以及双方的责任承担等问题成为人们争相议论的焦点。对于当事人法律地位的认定是弄清楚主体间法律关系的关键,由于在纸黄金交易的过程中,除了银行和宋某之外,没有出现任何其他的第三方主体,而交易总是发生在双方当事人之间的,所以应当肯定银行做为交易一方当事人的法律地位,即银行是当事人不是中介。由于银行是合同的一方当事人,所以银行有权根据法律的规定行使撤销权,当然撤销权的行使不是随意而为的,必须向法院提出,不能自行撤销。正是由于银行作为合同一方当事人可以撤销合同,所以宋某与银行之间业已成立的合同会因撤销权的行使而失去效力,这就意味着,宋某据以受有利益的合法根据的丧失,因而构成不当得利,因为不当得利不仅指自始没有合法根据,还包括事后丧失了合法根据的情形。当然即使银行是一方当事人,有权行使撤销权,且宋某等构成不当得利,银行也无权自行直接扣划客户的帐户余额,因为银行本质上只是一个与公民具有平等地位的民事主体,不具有相应的职权,银行非经法定程序的擅自扣划行为实为对公民个人财产权的一种侵犯,是一种侵权行为。因此,我国应当在研究和总结国内外理论和实践的基础上,探讨具体规则,最终形成立法,完善我国银行相关制度,遏制银行滥用其优势地位,保护公民的权益。
[Abstract]:The "China Gold first case", which took place in Jinan, Shandong Province, on 2006, has not yet been settled after the first and second instance of the trial. This virtual "paper gold" transaction has generated fierce disputes between banks and investors. For a long time there has been concern about whether the banks in the case have the right to unilaterally cancel a transaction between the two sides. Whether the investors' profits from the transaction are improper or not and whether the liability of the two parties should be borne has become the focus of discussion. The determination of the legal status of the parties is the key to make clear the legal relationship between the subjects. In the course of the paper and gold trading, there were no other third parties except the bank and Song, and the transaction always took place between the two parties. Therefore, we should affirm the legal status of the bank as a party to the transaction, that is, the bank is a party rather than an intermediary. Since the bank is a party to the contract, the bank has the right to exercise the right of rescission in accordance with the provisions of the law. Of course, the exercise of the right of rescission is not arbitrary and must be brought before the court and cannot be revoked by itself. It is precisely because the bank, as a party to the contract, can revoke the contract, Therefore, the contract already formed between Song and the bank will lose its validity because of the exercise of the right of rescission, which means that Song suffered the loss of a legitimate basis for interest and thus constituted improper enrichment. Because unjust enrichment means not only that there is no legal basis from the beginning, but also that the legal basis has been lost afterwards. Of course, even if the bank is a party, it has the right to exercise the right of rescission, and Song and so on constitute improper enrichment. The bank also has no right to directly withhold the customer's account balance on its own, because the bank is essentially a civil subject with equal status as a citizen and does not have the corresponding authority. The bank's unauthorized deduction without legal procedure is actually an infringement of citizens' personal property rights. Therefore, on the basis of studying and summing up the theory and practice at home and abroad, our country should explore the specific rules. Finally, legislation is formed to perfect the banking system in China, to prevent banks from abusing their dominant position and to protect the rights and interests of citizens.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D920.5;D922.281

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