2015 065438+1October 23rd
Compared with the income from purchasing other wealth management products, the deposit interest of banks is at a low level at present, but it is still recognized by most people as the safest and most reliable way to manage money. However, the recent frequent "disappearance" of depositors' deposits in banks inevitably raises doubts about the security of banks. 65438+1October 16, a website reprinted an investigation report of Xinhua News Agency with the title of "lost deposit" and "almost impossible to claim compensation", which was repeatedly forwarded, making people more worried: "Is my money in the bank safe? Do you dare to deposit in the bank in the future? "
Will the money in the bank really be gone? Can I get my lost money back? Will the bank be responsible for the compensation for the unrecoverable money? Our reporter visited financial legal experts, bankers and related lawyers to sort out the legal issues involved in such incidents.
Frequent incidents of deposit loss
On February 2, 65438, People's Daily reported that the depositor's deposit of 1 100 million yuan was transferred and the governor of China Bank was arrested. It is reported that the deposit of 1 100 million yuan of Nanjing citizen Shen was transferred in two branches of Bank of China Suzhou Branch, and Zhou, the former president of Kunshan Branch involved in the case, was arrested by the procuratorate. A wave of unrest, another wave. Two days later, People's Daily reported that the huge deposits of several depositors were illegally transferred by Suzhou Branch of Bank of China under the title of "China Bank was complained again and many depositors' huge deposits were transferred inexplicably". After these two reports were published, they aroused strong social repercussions.
On June 5438+1October 65438+May this year, Xinhua Viewpoint published an investigation report entitled "42 depositors lost 95 million deposits and bank deposits in many places disappeared repeatedly". According to reports, bank deposits have frequently disappeared in recent days: only tens of millions of deposits deposited by depositors in 42 banks in Hangzhou, Zhejiang Province have even been emptied; Well-known enterprises such as LU ZHOU LAO JIAO CO.,LTD Co., Ltd. also have abnormal deposits. In the past three months, 500 million yuan deposited in Agricultural Bank and Industrial and Commercial Bank of China has disappeared.
The reporter found that the disappearance of bank deposits is not new in recent years-
In May 2005, Hu Mou of Hengyang City, Hunan Province deposited150,000 yuan into Baisha District Sub-branch of Hengyang City, Hunan Province in the name of the company. Two months later, he found that the deposit had been impersonated.
In June 2008, Ms. Zhang from Taizhou City, Zhejiang Province deposited RMB 9 million in Jiangsu Yangzhong Sub-branch of Industrial and Commercial Bank of China. Soon after, she went to the bank to inquire, but was told that 9 million yuan had been transferred through online banking with U shield.
20 1 1 in April, Zhao Nvshi of Shenyang, Liaoning Province deposited100000 yuan in Xinglong Street Sub-branch of Panjin City, Liaoning Province. A month later, she found that there was only 1 yuan left in her account.
201165438 In 2003 10, Mr. Liu from Yiwu, Zhejiang Province deposited 2.5 million yuan in a state-owned bank, Fenghua Chengdong Sub-branch, Ningbo. Recently, he found that there was only 4 yuan left in his passbook account.
So, can these lost deposits be claimed? In the aforementioned Xinhua News Agency report, a lawyer said in an interview that "the reality is almost impossible". When a website reprinted this report, it was titled "Loss of deposit, almost impossible to claim compensation". For a time, there was an uproar online and offline-"Why are banks so unreliable? Isn't it safe to deposit your hard-earned money in the bank all your life? "
Where's the missing money?
The reporter carefully studied the above-mentioned publicly reported deposit loss incidents one by one: Nanjing Shenjin's deposit of nearly 100 million yuan was transferred to a business club in Qiu and Suzhou by the former president of Kunshan Branch; Hu's RMB 6.5438+0.5 million in Hengyang City, Hunan Province was falsely claimed by the brother of the president of Baisha District Sub-branch; The person who transferred Ms. Zhang 9 million yuan from Taizhou City, Zhejiang Province is the boss of the bank business department; Li, president of Xinglong Street Sub-branch, transferred money from Shenyang, Liaoning100,000 yuan. ...
Guo Hua, a professor at the Law School of the Central University of Finance and Economics, has served as a judge of the Economic Court of the Intermediate People's Court for many years and has rich experience in trying economic cases. He analyzed that the depositors' deposits in the bank are missing mainly in the following situations:
First, bank staff transfer depositors' deposits to other people's accounts through internal illegal operations; Second, bank staff colluded with enterprises and companies, and depositors' deposits did not enter the banking system but were directly used for other purposes; Third, depositors are fooled by bank staff and turn deposits into insurance, wealth management and other products. If they can't protect their capital and make profits, they may lose money. The last situation is more common, criminals steal depositors' deposits by attacking online banking or forging bank bills or even bank cards. In the first two cases, some bank staff misappropriate depositors' deposits to repay personal debts. More often, in order to obtain high intermediary fees and handling fees, some banks directly transfer depositors' deposits to enterprises or individuals who need money, and even participate in private lending and "extracorporeal circulation" outside the banking system. The operation mode of "extracorporeal circulation" is that banks use the time difference of capital turnover to "rob Peter to pay Paul" and transfer depositors' deposits to other investors. If the turnover is not enough to make up for it, depositors will find their deposits missing when they withdraw money.
Guo Hua introduced that in the past, banking business was deposits, withdrawals, foreign exchange and other businesses; Nowadays, the scope of banking business is increasing, and it can act as an agent for various wealth management products and insurance agency business. This state of mixed operation puts forward higher requirements for the management of banks. The frequent disappearance of deposits is not only because banks have failed to follow up the system norms in time in pursuit of blind expansion of scale, but also because the technology used by banks lags far behind the development of science and technology. If some bank ATMs can't identify fake cards due to system defects, customer deposits will be stolen. In addition, banks excessively pursue interests and neglect the protection of customers' interests, constantly pursue financial innovation and ignore the risks brought by financial security, and lack sufficient understanding and proper prevention of these risks, which leads to the continuous problem of bank funds insecurity.
Who will bear the responsibility for the loss of deposits?
The deposit evaporated in the bank. Who will bear the responsibility? Guo Hua told reporters, "Banks and depositors are equal civil subjects or market transaction subjects. If the depositor is not at fault and the bank fails to fulfill its maximum security obligation, it shall bear all the responsibilities. For the losses caused by bank staff misleading customers and depositors seeking extra benefits, their respective responsibilities should be determined according to the transaction status between banks and customers and their fault degree. Even if the so-called bank temporary workers are caused by illegal operation, even if it constitutes a criminal offence, the bank should bear the responsibility to the customer first, and then the bank will make internal recovery. The so-called punishment should not be taken first, and civil compensation should be made after the money involved is recovered. "
"The deposit dispute between banks and depositors is very complicated. Every case depends on the evidence, and the responsibilities of both parties are divided according to the principle of fault. It is not objective to lose a deposit and almost impossible to make a rough judgment on the claim. However, some media have taken this judgment as a striking headline without serious investigation, which is also a lack of professionalism and irresponsible attitude towards the public. " Li Aiwen, a lawyer at Beijing Dacheng Law Firm, said.
"Normal withdrawal of deposits is unlikely to lose depositors' deposits. Even if something goes wrong, as long as there is a de facto deposit relationship between banks and depositors, banks are generally hard to blame. "According to Li Aiwen, as early as 1997, the Supreme Court issued" Several Provisions on the Trial of Deposit Certificate Disputes ",which made detailed provisions on the identification and handling of deposit certificate disputes between financial institutions and depositors. For example, in the case of "the holder brings a lawsuit based on authentic documents", the handling method is "if the financial institution cannot provide evidence to prove that the deposit relationship is untrue, or only defends on the grounds that the contents of the bill of the financial institution are inconsistent with the above-mentioned documents, the people's court shall determine that the deposit relationship between the holder and the financial institution is established and the financial institution undertakes the obligation to pay the money".
In the recent incidents of "disappearance" of bank deposits, the reporter found that the situation did not seem so simple. These depositors all feel unlucky, but a careful study of the ins and outs of each event will reveal that these events have extremely similar anomalies. For example, depositors are often introduced by friends or bank staff, and the amount of deposits is abnormally high, with millions of yuan deposited at a time; Many banks that save money are not where they live; When you make a deposit, the receptionist is almost always the person in charge of the bank; The interest promised by the staff is much higher than the normal interest of the bank. Some people even receive a rebate from the bank when they deposit their money in the bank ... Many depositors also mentioned the word "discounted deposit".
The person in charge of the Legal Compliance Department of the Shanghai Head Office of a commercial bank told the reporter that the discount deposit refers to the interest part given to depositors according to the deposit amount in addition to the original bank interest. This is an illegal act taken by some banks to collect deposits at high interest rates. When depositors are tempted by high interest rate returns, they should also be aware that their funds may be in a high-risk situation. In this case, depositors may also have to bear certain responsibilities.
"The lost money may not be recovered," said Wang Hong, a professor at Sun Yat-sen University Law School. "From a civil point of view, if it is a contract dispute case, the existing trial idea is to share the loss according to the fault ratio of the bank and the depositor. If the depositor has a greater fault, he will naturally get less compensation. If it is an infringement case, because different judges have different understandings of Article 34 of the Tort Liability Law, if the staff of the employing unit causes damage to others due to the execution of their work tasks, the employing unit shall bear the tort liability, and the same case may have different judgments. Only when the court finds that the behavior of the bank staff is a duty infringement, the bank will assume the employer's responsibility and compensate the depositors, otherwise the bank staff involved will bear the personal responsibility. If the bank staff is unable to compensate, the losses of depositors will be difficult to make up. If it is a cross-disciplinary case involving criminal crimes such as theft and fraud by bank staff, once the case of the suspect at large is delayed, the depositor may not get compensation for a long time by adhering to the principle of punishment before the people when handling disputes (that is, handling criminal cases first and handling civil disputes later); In addition, in practice, some contracts held by depositors are invalidated because of criminal offences committed by bank staff, and the bank staff involved bear personal responsibility. If criminals squander their money, depositors' money will be lost. "
Perfecting legislation and strengthening internal control
"At present, most laws and regulations concerning banks are so-called departmental legislation drafted by the financial sector. Departmental legislation will inevitably lead to excessive protection of departmental interests. In the existing laws and regulations, even if there are some provisions to protect the rights and interests of customers, most of them are principled or even declarative, and the operability is not strong. " Guo Hua said.
"The biggest difficulty in such cases is the issue of proof. In the trial practice, judges follow the principle that whoever advocates gives evidence in civil litigation, and banks, as financial enterprises, have quasi-public attributes. The responsibility of banks for social public interests is much higher than that of ordinary enterprises. The trading status of banks is higher than that of depositors, and its liability composition should be different from that of ordinary enterprises in addition to general civil liability. Judging the responsibility of banks only from the perspective of civil law is not conducive to prompting banks to improve their technology and increase their security needs. Wang Hong said that at present, many countries adopt the principle of inversion of burden of proof when trying such cases, and financial laws such as the Commercial Banking Law should add corresponding clauses, pay more attention to protecting depositors' interests and increase bank responsibilities to meet the requirements of standardizing and developing the financial industry. "
Guo Hua also pointed out that only by increasing the legal responsibility of banks can banks continuously improve their management and testing level, strengthen the investment in system technology update and safety equipment, continuously reduce the loopholes in capital flow and reduce the risks of banks and customers. If banks are allowed to shirk or shirk their responsibilities, their risks will not be reduced, but will also lead banks to relax their management and prevention in this area, leaving opportunities for criminals, which will ultimately be unfavorable to banks and customers.
"In every case of missing deposits, we can see loopholes in bank management. Only by strengthening the internal management of banks can it be possible to prevent the recurrence of the disappearance of bank deposits from the source. " An industry insider said.
"It is impossible for us to transfer customers' funds outside." An employee of a Singapore branch of a state-owned bank told reporters that the Bank of China Suzhou Branch has also informed depositors that the deposit of 1 100 million yuan has been transferred. But this kind of thing will hardly happen in Singapore, because the laws are relatively sound and the internal management of banks is very strict. For example, each large sum of money needs two people to confirm face to face with the customer, and two people are also needed to execute the transaction. All the customer's document supervisors will check it again, and any mistakes will be included in the personal performance appraisal, which will affect the bonus and work. Once a bank employee is tainted, he can't work in this industry. Because the employer will check the comments and credit records of the former employer when recruiting people, it will not be used if there is a little doubt. For another example, financial management personnel must take a number of licenses before taking up their posts and pass regulatory review. In the course of practice, in addition to auditing the branch, the management department also has special supervisors to inspect the business done. The regulatory authorities will often conduct secret investigations to check whether there are violations.
"Singapore has high crime costs and few bank violations. Customers can complain at any time, and it is convenient to write an email to the monetary authorities. If it is true, the bank will also be punished, and in serious cases it will be closed down. Therefore, people's understanding of compliance management is not what they say. " The clerk said.
"Banks are basically safe, but that doesn't mean there is no risk." An industry insider reminds depositors that bank deposits must be made at the bank's business premises and during bank business hours, and don't easily accept high-interest products promoted by bank staff; We should be more alert to various forms of deposits that promise high returns.