According to article 1 1 of the central bank's Measures for the Administration of RMB Unit Deposits, depositors can only transfer their deposits to their basic deposit account by transfer, and may not use time deposits for settlement or withdraw cash from time accounts. According to this regulation, if the above-mentioned pledged certificates of deposit are to be disposed of, the proceeds must go to the borrower's basic account (parent account). After the funds are paid from the sub-account to the parent account, its nature has changed, that is, the parent account is not a pledge account, and Bank A may not be recognized by other creditors or even the enforcement court if it wants to realize the priority of repayment in this account. It is really difficult for banks to realize their creditor's rights when the mother account has been seized by the judiciary. If compulsory payment is made, it may also be suspected of obstructing civil litigation and be investigated for criminal responsibility. In this way, a low-risk business may evolve into a high-risk business.
There are generally two ways to solve this kind of problem: one way is that Bank A communicates with the enforcement court, allowing the bank to release the pledged deposit certificates into the parent account on the premise of confirming the fact that the sub-account is pledged, and then the enforcement court temporarily unseals the parent account, allowing the bank to deduct loans from the parent account. Another method is that Bank A brings a civil lawsuit to the local people's court, and the people's court confirms the deposit right under the certificate of deposit. In the process of application execution, the enforcement court coordinates to unseal the deposit certificate to the parent account, and the enforcement court temporarily unseals the parent account and then deducts the loan from it. But no matter which way, the realization of creditor's rights is more complicated, which invisibly increases the litigation burden of banks.
Provisions of the Supreme People's Court on the seizure, seizure and freezing of property in civil execution by the people's courts
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Article 5 The public security organ may, according to the needs of investigating crimes, seal up real estate such as land and houses involved and specific movable property such as vehicles, ships, aircraft and large-scale machinery and equipment involved. When necessary, legal documents and documents proving their property ownership or related rights and interests may be seized together.
Seizure facilities, furniture and other related articles placed on real estate that need to be used as evidence; If it is not suitable for moving, it can be sealed together.
Article 6 Where the seizure of property involved requires the assistance of relevant departments such as land and resources, real estate management, transportation, agriculture, forestry, civil aviation, etc., it shall, with the approval of the person in charge of the public security organ at or above the county level, make a seizure decision and a notice of assistance in seizure, specify the seizure of property, the method of seizure and the duration of seizure, request the assistance of relevant departments, and promptly inform the relevant parties.
If the area and amount of land and houses involved are relatively large, it shall be approved by the person in charge of the public security organ at or above the municipal level with districts, and a seal-up decision and a notice of assistance in seal-up shall be made.
Article 7 The time limit for sealing up shall not exceed two years. At the expiration of the time limit, the seal can be renewed once, and the renewal shall be approved by the person in charge of the public security organ at or above the county level who originally made the decision on sealing up. Within five days before the expiration of the time limit, the decision on seizure and the notice of assistance in seizure shall be re-made and sent to the relevant departments for assistance. The longest renewal period shall not exceed one year.
If the case is serious and complicated, and it is really necessary to renew the seal, it shall be approved by the person in charge of the public security organ at or above the municipal level, and make a new sealing decision and a notice of assistance in sealing up within five days before the expiration of the time limit, and the maximum duration of each renewal shall not exceed one year.
If the expiration of the storage period fails to go through the renewal procedures, the storage will be automatically lifted.
The public security organ shall promptly inform the parties of the decision to renew the letter.
Article 8 If it is necessary to inquire about the ownership of real estate when sealing up land, houses and other real estate involved, it shall be approved by the person in charge of the public security organ at or above the county level, and a notice of assistance in inquiring about property shall be made.
Investigators to the land and resources, real estate management and other relevant departments to handle inquiries, they should show their work certificates, submit a notice of assistance in property inquiries, and handle inquiries in accordance with relevant regulations.
Need to inquire about other property ownership registration, with reference to the above provisions.
Ninth land resources, real estate management and other relevant departments shall promptly assist the public security organs in handling inquiries. The relevant written materials inquired and copied by the public security organ shall be sealed by the ownership registration institution or the ownership file management institution.
If the inquiry cannot be provided on the spot due to special circumstances, the inquiry result shall be provided within five days.
Unable to query, the relevant departments shall inform the public security organs in writing.
Tenth land, housing and other real estate ownership confirmation to land resources, real estate management and other relevant departments of the real estate registration book or real estate ownership certificate shall prevail. If the real estate ownership certificate is inconsistent with the real estate register, the real estate register shall prevail unless there is evidence to prove that there is an error in the real estate register.
Eleventh land resources, real estate management and other relevant departments in assisting the public security organs to deal with the seizure. If it is considered that the information of the real estate involved in the seizure is incorrect and cannot be handled, it may suspend the assistance in handling, and submit a written review proposal to the public security organ, which shall timely review and handle it.
Article 12 Where a real estate such as land or house is seized, it shall be approved by the person in charge of the public security organ at or above the county level, and a notice of assistance in seizure shall be made, which shall specify the detailed address of the real estate involved, the number of the ownership certificate, the name of the owner or the name of the unit, and sent to the relevant departments of land and resources, real estate management and other departments for assistance. The relevant departments shall indicate the handling situation when receiving the relevant notice.
Investigators to the land resources, real estate management and other relevant departments for land use rights or housing seizure registration procedures, should produce work documents, submit the seizure decision and assist in the seizure notice, and handle the seizure in accordance with the relevant matters.
Thirteenth investigators seized land, houses and other real estate involved shall not be less than two. The relevant parties and witnesses shall be notified to show up with their work certificates and relevant legal documents, and a sealed record shall be made, and the seized property shall be counted together with the personnel present, and a sealed list shall be made in triplicate on the spot. After being signed by the investigators, witnesses and the real estate owners or users, one copy shall be handed over to the real estate owners or users. One copy shall be submitted to the custodian of the public security organ, and one copy shall be attached with photos, video materials or seized property certificate for future reference, and a notice shall be posted in a prominent position of the real estate, and a standard seal may be posted if necessary.
The attachment list shall contain the detailed address and related features of the real estate involved, a list of facilities, furniture and other related items that are not suitable for moving on the real estate, and indicate whether photos or videos have been taken or not, and whether the real estate ownership certificate has been attached.
If it is impossible to determine the relevant obligee of real estate or the obligee refuses to sign, it shall indicate the situation in the record of seizure.
Fourteenth land resources, real estate management and other relevant departments of the land, housing and other real estate seized by the public security organs according to law, during the seizure period, shall not handle the alteration, transfer or mortgage, easement registration.
Fifteenth of the land, houses and other real estate that can be divided in accordance with the relevant provisions, only the part related to the case will be sealed up, and it will be clearly stated in the notice of assistance in sealing up; In accordance with the relevant provisions of the indivisible land, housing and other real estate involved, can be sealed up as a whole.
Sixteenth land resources, real estate management and other relevant departments. If the application for registration of the transfer of real estate involved in the land and house has been accepted when the Notice of Assistance in Attachment is received, but it is not recorded in the real estate register, it shall assist the public security organ in handling the registration of attachment.
Seventeenth the following houses without registration, the public security organs can be sealed up in accordance with the provisions:
(a) the real estate development enterprise involved has handled the pre-sale permit for commercial housing but has not yet sold the house;
(2) The house purchased by the criminal suspect and initially registered by the real estate development enterprise;
(3) The house purchased by the criminal suspect that has gone through the formalities of registration and filing of the pre-sale contract of commercial housing or the pre-sale registration and filing of commercial housing.
Eighteenth the effect of sealing up the above-ground buildings and the construction land use right within the occupied area, except that the construction land use right and the ownership of the above-ground buildings belong to different obligees.
If the above-ground buildings are inconsistent with the land use right registration agencies, they shall be sealed up and registered separately.
Nineteenth vehicles, ships, aircraft and large machinery, equipment and other specific movable property, it should be made to assist in the seizure notice, clear the name, model, ownership, address and other related matters, and sent to the relevant registration management departments for assistance. When necessary, the relevant certificate of rights may be seized.
When sealing up, the property involved should be sealed up after taking photos or videos, or handed over to the holder, close relatives or entrusted to a third person for safekeeping. The relevant custodian shall keep it properly and shall not transfer, sell or damage it.
Article 20. If the real estate involved in the case, such as land and houses, or specific movable property such as vehicles, ships, aircraft and large machinery and equipment, is sealed up, the parties concerned may be allowed to continue to use it reasonably and take necessary measures to preserve it under the condition of ensuring the normal investigation activities.
Twenty-first places, facilities and affordable housing such as education, medical care, health and welfare institutions for public welfare purposes shall not be sealed up in principle. If it is really necessary to seal up, it shall be approved by the person in charge of the public security organ at or above the municipal level.
Twenty-second seizure of land, housing and other real estate involved, with reference to these provisions. The seizure of * * * property, secured property and other special property shall be handled in accordance with relevant regulations.
The risk of deposit certificate pledge For the case of lending to the bank with deposit certificate pledge, the risk of deposit certificate pledge is mainly manifested in the defects of the deposit certificate itself and the authenticity and legality of the deposit certificate, but the bank has not gone through the registration and payment suspension procedures, which makes the pledge invalid.
These two risks exist only in banks. If the certificate of deposit itself is an altered or forged fake certificate of deposit, and the lending bank fails to verify and find loopholes, the borrower may not be able to repay the principal and interest when the loan expires. At this time, due to the defects of certificates of deposit, banks can't realize the pledge as scheduled, which means that the pledge of certificates of deposit can't be effectively established. Or the certificate of deposit itself is valid and legal, but the bank staff fails to stop paying the certificate of deposit used for pledge due to intentional or work mistakes. At this time, the pledgor can still report the loss and withdraw the pledge.
No matter whether the former is invalid pledge or the latter has loopholes after its establishment, both cases will lead to the loan guarantee in name only. When the borrower fails to pay off the loan principal and interest when the loan expires, the lending institution can only ask the borrower to repay all the loan principal and interest paid by the bank according to the ordinary creditor's rights, which is extremely risky for the bank, especially in the case of pledging with a third-party certificate of deposit. Therefore, Article 6 of the Measures for Personal Term Pledged Loans promulgated and implemented by China Banking Regulatory Commission on July 3, 2007 stipulates that if a third-party certificate of deposit is used as collateral, the lender shall formulate strict internal procedures, carefully examine the authenticity, legality and validity of the certificate of deposit, and prevent the occurrence of rights defects. ?