破产程序中银行扣款还贷行为的法律性质与效力研究

发布时间：2018-06-06 13:39

本文选题：扣款还贷 + 存款所有权　；参考：《吉林大学》2017年硕士论文

【摘要】：本文讨论的问题是,银行与债务人在合同中约定,在发生债务逾期等情形时,银行有权扣划债务人在该行开立的任一账户中的资金用于清偿债务(以下简称“扣款还贷”)时,在破产程序中,银行依据该扣款还贷条款实施的扣款还贷行为的法律性质以及该行为的法律效力。通说认为,银行与债务人之间因存款行为形成的法律关系是债权债务关系,存款所有权由银行所有,债务人仅享有要求银行支付存款的债权,进而认为银行实施的扣款还贷行为是在行使抵销权。在破产程序中,银行可基于扣款还贷条款以及《破产法》关于破产抵销权的规定,对债务人银行存款依法行使破产抵销权,因而,在破产程序中,银行的扣款还贷行为在符合法律规定的情形下是合法有效的,通过抵销制度,银行与债务人之间的交叉债权消灭。通说的观点将存款人存入银行的法定货币与因此形成的存款货币混为一谈。存款人将法定货币存入银行后,该法定货币转化为存款货币。存款货币以银行账户余额为表现形式,具有与法定货币一样的流通支付功能,是受存款人直接支配的财产利益,存款人支配存款货币就如同实际支配法定货币一样,应当跳出物权客体应是有体物的桎梏,认可存款人对存款享有所有权,存款人与银行之间因存款行为形成的法律关系应是货币保管关系与投资关系的混合法律关系。清偿和抵销是两种并列的债的消灭原因,两者并不存在包含关系,银行的扣款还贷行为是在行使抵销权的观点混淆了两者的关系。银行与债务人因扣款还贷条款形成了委托法律关系,银行依据该委托条款实施的扣款还贷行为的法律效力无异于债务人主动清偿债务,因此银行的扣款还贷行为的法律性质是债的清偿行为。由于银行的扣款还贷行为的法律性质为债的清偿行为,在法院受理破产案件后,该清偿行为因违反《破产法》关于禁止个别清偿的规定而无效。但该行为被认定为无效后,若银行仍可向管理人主张行使破产抵销权,则将银行的扣款还贷行为认定为无效就失去了实际意义。基于存款人与银行之间因存款行为形成的法律关系是货币保管关系与投资关系的混合法律关系并非债权债务关系,且存款人享有存款所有权,银行行使抵销权的前提已经不复存在。因而,银行的扣款还贷行为在破产程序中被认定为无效或被撤销后,银行亦不能主张行使抵销权使其债权优先获偿。
[Abstract]:The problem discussed in this paper is that the bank and the debtor agree in a contract that, in the event of a debt that is overdue, the bank shall have the right to withhold the funds in any account opened by the debtor for the purpose of paying off the debt (hereinafter referred to as "withholding the loan"). In the bankruptcy proceedings, the legal nature and the legal effect of the deduction and loan repayment act carried out by the bank in accordance with the deduction and loan repayment clause. Generally speaking, the legal relationship between the bank and the debtor due to the deposit behavior is the creditor's debt relationship, the ownership of the deposit is owned by the bank, and the debtor is only entitled to the creditor's rights requiring the bank to pay the deposit. Furthermore, it is believed that the bank is exercising the right of set-off. In insolvency proceedings, the bank may exercise the right of set-off against the bank deposits of the debtor on the basis of the deduction and repayment clause and the provisions of the bankruptcy Law on the right of set-off in bankruptcy, thus, in insolvency proceedings, The bank's deduction and repayment is legal and effective in accordance with the law, and the cross-claims between the bank and the debtor are eliminated through the system of set-off. The conventional view confuses the legal tender in which depositors deposit in the bank with the resulting deposit currency. After depositors deposit legal currency in a bank, the legal tender is converted into deposit currency. The deposit currency is expressed in the form of bank account balance and has the same circulating payment function as the legal tender. It is the property interest directly controlled by the depositor, and the depositor controls the deposit currency as if he actually dominates the legal tender. The object of real right should be out of the shackles of substance, the depositor should have the ownership of the deposit, and the legal relationship between the depositor and the bank should be a mixed legal relationship between the relationship of money custody and investment. Liquidation and offsetting are the reasons for the two kinds of juxtaposition of debts, there is no inclusive relationship between them, and the bank's behavior of withholding and repaying the loan is to confuse the relationship between the two in the view of exercising the right of set-off. The bank and the debtor form the entrustment legal relationship because of the deduction and repayment clause. The legal effect of the bank's act of withholding and paying off the loan according to the entrustment clause is no different from the debtor's initiative in paying off the debt. Therefore, the legal nature of the bank's deduction and repayment of loans is the repayment of debts. Since the legal nature of the bank's act of withholding and repaying the loan is a debt settlement, after the court accepts the bankruptcy case, the liquidation is invalid because of the violation of the provisions of the bankruptcy Law prohibiting individual liquidation. However, if the bank can still claim to exercise the right of bankruptcy set-off to the administrator after the act is considered invalid, the bank's deduction and repayment of the loan will lose its practical significance. Based on the fact that the legal relationship between depositors and banks due to deposit behavior is a mixed legal relationship between money custody relationship and investment relationship, it is not a creditor's debt relationship, and the depositor has the ownership of the deposit. The premise for banks to exercise the right of set-off no longer exists. As a result, the bank can not claim to exercise the right of set-off to give priority to the repayment of its creditor's rights after it is deemed invalid or revoked in the bankruptcy proceedings.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92

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