According to the theory of civil law, the deposit has the following legal characteristics:: 1, the deposit is a kind of money security. Its security is embodied in the provisions of the law on the deposit penalties (i.e., the deposit is given to the party who does not fulfill the agreed obligations, no right to demand the return of the deposit; the party who receives the deposit does not fulfill the agreed obligations, the deposit should be doubled.) 2, the deposit is set by giving behavior. The deposit contract is a practical contract, the deposit contract is effective from the date of payment of the deposit. 3、The deposit must be agreed upon with a clear expression of meaning. The parties either expressly agreed that the money it gives as a deposit, or agreed on the actual content of the deposit penalty, otherwise it does not constitute a deposit. (The supreme people's court on the implementation of & lt; Chinese people's *** and state guarantee law & gt; a number of issues of the interpretation of article 118, the parties to the delivery of the lien, security deposit, guarantee, contract, deposit or deposit, but did not agree on the nature of the deposit, the parties to the claim of the right to deposit, the people's court shall not support.)
1, contracting deposit contracting deposit, also known as the contracting deposit, is to guarantee the conclusion of the contract to pay a certain amount of money. Contracting deposit is a party refused to enter into the main contract for the applicable conditions. The supreme people's court on the implementation of & lt; Chinese people's * * * and state guarantee law & gt; some of the interpretation of article 115, the parties agreed to deliver the deposit as a guarantee for the conclusion of the main contract, the party who paid the deposit refused to enter into the main contract, no right to request the return of the deposit; the party who receives the deposit refused to enter into the contract, the deposit should be doubled back. 2, into the agreement into the agreement, said for the establishment of the contract for the deposit, and the delivery of the object of the contract, the same role. (Because it does not see "deposit penalty", so the actual non-debt security.) Judicial interpretation of article 116, the parties agreed to deliver the deposit as the main contract or the effective elements of the establishment of the deposit, the party who did not pay the deposit, but the main contract has been fulfilled or perform the main part of the main contract, does not affect the main contract is established or in force. 3, the termination deposit, the termination deposit, refers to the parties agreed in the contract to bear the deposit penalty as the reservation of the right to terminate the contract of the consideration of the deposit. The termination deposit is a party to cancel the contract as the applicable conditions. The establishment of the termination deposit must be clearly stipulated in the contract, otherwise the contract can only be interpreted as a deposit for breach of contract (a party may be profitable, it will return double the deposit or give up the deposit to terminate the contract, which undermines the principle of good faith). 3.1 the essence of the termination deposit is to give the parties to the contract in the waiver or doubling of the deposit and other conditions in order to unilaterally terminate the contract. 3.2 the contract agreed to understand the deposit, the party to bear the loss of the deposit in exchange for the termination of the contract, the contract can not force the actual performance. 3.3 If the party applies to the people's court to force the actual performance of the contract, the people's court shall reject. 3.4 deposit penalties do not exclude damages, in the case of the party who keep the contract loss is greater than the deposit on the gain, the party who has assumed the deposit penalty should still bear the responsibility for damages. 4, liquidated damages liquidated damages is actually a performance deposit, that is, in order to guarantee the performance of the contract and the payment of a certain amount of money. Article 89 of the security law, the parties may agree to pay a deposit to the other party as a guarantee of the debt. After the debtor has performed the obligation, the deposit shall be set off against the price or recovered. The party who paid the deposit does not fulfill the agreed debt, no right to demand the return of the deposit; the party who received the deposit does not fulfill the agreed debt, the deposit should be doubled back. 5, the evidence of the deposit, refers to the delivery of facts as proof of the existence of a contractual relationship between the parties to the deposit. Proof of the deposit is not a necessary condition for the establishment of the contract, whether the contract is established with the delivery of the deposit has nothing to do. Guarantee law and its supreme court judicial interpretation did not make special provisions, but judicial practice recognizes the delivery of the deposit of written evidence (such as receipts) for the main contract has been established evidence. In fact, the evidence of the deposit is a general deposit have ****, in most cases, the deposit of the evidence of the nature of the contract is not due to the parties specifically agreed to arise and independent, but by the breach of contract deposit, termination of the deposit and into the deposit is derived.
1, the nature of the deposit can be agreed by the parties. The parties can agree in the contract deposit has a mutually exclusive multiple nature. For example, the standing agreement, the parties can agree in the formal conclusion of the main contract, the deposit is not to be returned, but instead used as a deposit for breach of contract; for into the agreement, the evidence of the agreement, can also be made by agreement to make the payment of a deposit at the same time with the nature of the breach of contract. 2, in some cases, even if the parties did not agree, but also can be presumed to deposit both the nature of the agreement other than the nature of the deposit. Such as liquidated damages, termination of the deposit and into a contract, is the main contract of the contract, and the existence of the contract from the main contract must be able to prove the existence of the contract, so of course, with the three kinds of deposit at the same time to prove the nature of the deposit. 3, the parties did not agree on the nature of the deposit, should make the corresponding presumption. In general, the deposit should be presumed to have only the general nature of the deposit. According to the spirit of the legislation of the provisions of the security law, our trading habits and judicial practice is generally recognized, the general nature of the deposit should be a deposit for breach of contract.
1, the amount of the deposit is in principle agreed by the parties, but the security law on its maximum limit and made a limit, that is, can not exceed the subject matter of the main contract amount of twenty percent. Judicial interpretation, the parties agreed to the deposit amount of more than twenty percent of the subject matter of the main contract, more than the part of the people's court shall not be supported. The intention is obviously to limit the amount of the deposit is too large, the deposit will be limited to a certain limit of punishment. 2, the law explains the provisions of article 119, the actual delivery of the deposit amount is more or less than the agreed amount, as a change in the deposit contract; the party who receives the deposit objections and refuses to accept the deposit, the deposit contract does not take effect. The provisions of the deposit contract is a practical contract, only after the deposit delivery of the other party to accept, the deposit contract is established.
1, deposit penalties specific content of the payment of the deposit party does not fulfill the contractual obligations, no right to request the return of the deposit; acceptance of the deposit party does not fulfill the contractual obligations, double the return of the deposit. The party does not fully perform the contract, should be in accordance with the proportion of unfulfilled part of the contract, the application of deposit penalties. 2, the application of the deposit needs to comply with the following conditions: 2.1 deposit contract is a practical contract, the need for the actual delivery of the deposit. If the deposit is not actually delivered, the deposit penalty cannot be applied when one of the parties does not fulfill the contractual obligations or does not enter into the main contract. 2.2 The main contract must be valid. This is determined by the subordinate nature of the deposit contract. If the main contract is invalid or revoked, even if the parties have the fact of delivery and acceptance of the deposit, can not apply the deposit penalty. However, the parties can agree to the effect of the deposit contract is independent of the main contract, that is, the main contract is invalid deposit contract is not necessarily invalid. 2.3 the parties do not fulfill the debt and not statutory exemptions. 3, the "security interpretation" on the application of the deposit penalties for several special circumstances: 3.1 regarded as non-performance of the secured debt. Due to the party delayed performance or other default, so that the purpose of the contract can not be realized, can be applied to deposit penalties. However, unless otherwise provided by law or agreed upon by the parties. 3.2 Incomplete performance of the contract deposit penalties. One of the parties does not fully perform the contract, should be in accordance with the proportion of the unfulfilled part of the contractual content, the application of deposit penalties. 3.3 If the main contract cannot be performed due to force majeure or unforeseen events, the deposit penalty shall not apply. If the main contract cannot be performed due to the fault of a third party outside the contractual relationship, the penalty of deposit shall apply. The party penalized by the deposit, can be recovered from the third party according to law.
1, the purpose of different guarantees, mortgages, pledges, liens, the purpose of the guarantee, are only to ensure that the creditor's interests, the debtor does not provide any protection. And the deposit guarantee on both parties to the contract provide performance guarantee. 2, the difference between the legal effect 2.2.1 guarantee the rights arising from the claim, does not have priority; 2.2.2 deposit the rights arising from the claim, the same does not have priority; 2.2.3 mortgage, lien, pledge to obtain is the right of collateral, the collateral and its realization of the price of the proceeds of the right of priority. 3, the nature of different deposit deposit penalty has punitive, several other kinds of security are not punitive.
1, both sides of the application of the deposit penalty default 1.1 the so-called default, refers to a contractual relationship, have to treat the two parties, are in violation of the provisions of the contract, undermining the contract of both sides of the contract of their respective expectations of contractual benefits, and should be responsible for the situation. 1.2 In the case of a breach of contract by both parties, if one party's breach of contract falls within the statutory or agreed circumstances for the application of the deposit penalty, and the other party's breach of contract in respect of other matters, the deposit penalty shall be applied unilaterally in respect of the former party only, and the latter party may be held liable for the corresponding breach of contract. If both parties default belong to the statutory or agreed to apply deposit penalties, then both apply deposit penalties, that is, one party loses the deposit, the other party to double the deposit, offsetting each other, the party who paid the deposit can recover all or part of the deposit. 1.3 practice, in dealing with the above issues, should pay attention to the distinction between the two sides of the default and the application of the right to defend, to prevent the establishment of the right to defend the unilateral breach of contract misjudged as a two-party default. 2, deposit and liquidated damages provisions can be applied at the same time? 2.1 China's "contract law" article 118 provides: "the parties both claim to agree on liquidated damages, and deposit, a party default, the other party can choose to apply liquidated damages or deposit terms." Therefore, the deposit and the liquidated damages cannot be applied at the same time, but can only be applied selectively. 2.2 from the jurisprudence of the analysis, the deposit penalty has punitive, liquidated damages also has punitive, if used at the same time, it is against the basic spirit of the principle of fairness. For the defaulting party is too harsh, the other party to get the income should not get. 3, the application of deposit penalty at the same time, can request for damages? The liability of the deposit can not replace the liability for damages, the two should be distinguished. If a party caused actual losses, the other party to apply the deposit penalty at the same time, can also request for damages. But the application of deposit penalties and damages can not be greater than the total value of the subject matter of the sum of the price. 4, a party in the application of deposit penalties at the same time, can request the other party to actually perform the contract? If the nature of the deposit is the termination of the deposit, a party to apply the deposit penalties at the same time can not request the other party to actually perform the contract; but if the default deposit, contract deposit or into the agreement, a party to apply the deposit penalties at the same time, you can also request the other party to actually perform the contract.
1, deposit and security deposit 1.1 security deposit refers to one or both parties to the contract to ensure the fulfillment of the contract, and retained in the other party or withdrawn in the third party's money. 1.2 in the reality of economic life popular security deposit has two main forms: one is the contract parties to ensure the realization of their claims and require the other party to provide security deposit. The other form of security deposit is a deposit made by both parties to a third person (usually a notary public) recognized by the ****same party at the time of the formation of the contract in order to guarantee the performance of their respective obligations. 1.3 The deposit also has the role of guaranteeing the realization of the contract like the deposit, but it does not have the function of double return. And the parties can agree on the role of the deposit function (such as: the contract of the guarantee, the conditions of the contract, the proof of the establishment of the contract, or the contract is canceled the price). And these functions are the deposit does not have. 1.4 the security deposit to retain or withdraw the time and amount is not limited. The parties can agree on their own in the performance of the contract before the performance of the contract in the process can be; the amount of the deposit can be equivalent to the amount of the debt, and not like the deposit, the total amount shall not exceed 20% of the total price of the main contract, and it must be in the contract or the contract before the signing of the payment. 2, deposit and prepayment 2.1 the concept of prepayment prepayment is the recipient of products or services to show their sincerity in the performance of the contract or for the other party to perform the contract to provide a certain amount of money, in the other party to perform the contract before the other party to take the lead in the payment of a portion of the price or remuneration for services.... In practice, deposit, advance payment, honesty and credit are various aliases of advance payment. 2.2 Difference between the two 2.2.1 The purpose of an advance payment is to be the first to pay a certain amount as a goodwill for the performance of the contract, or to make this amount a part of the funds required for the performance of the contract. Therefore, the advance payment is actually a part of the amount of money due for the performance of the contract, which is not the case with a deposit. 2.2.2 The time of payment of a deposit can be either at the formal conclusion of the main contract (i.e. at the stage of contract reservation) or after the conclusion of the contract. An advance payment, on the other hand, is generally not required until after the contract has been formally concluded. 2.2.3 The role of the deposit is to guarantee the performance of the main contract, before the conclusion of the contract of sale, generally bind the parties to sign the formal contract on time; and after the conclusion of the contract deposit mainly to promote the parties to enter the substantive performance of the contract stage. But as far as the advance payment is concerned, the contract is invalid or the occurrence of breach of contract, the same amount can be refunded, it does not have the nature of punishment. 2.3 if the meaning of the payment is not clear or the law can not be recognized with the deposit terms or deposit contract, should be presumed to be an advance payment. 3, the deposit and liquidated damages 3.1 the concept of liquidated damages: liquidated damages is the parties to the contract at the time of contract formation or the law stipulates in advance, when one party defaults on a certain amount of money paid to the other party. 3.2 Difference: the former is a form of guarantee, the latter is a liability for breach of contract.
1, the types of deposit: breach of contract deposit, deposit to make a contract, into the contract, termination of the contract deposit, certificate deposit 2, deposit features: the form (in writing), in kind 3, the amount of the deposit: ≤ 20% 4, deposit penalties: breach of contract (fundamental breach of contract, incomplete performance - proportional), refusal to enter into, termination of the contract 5, deposit judgments: retention, security, guarantee, deposit, deposit, deposit, deposit or subscription, etc.