Randomness in trial practice

The road to dispute

When banks and other financial institutions issue loans, they will agree with the lenders to withdraw a certain percentage of the total loans as deposits and deposit them in the lender's or lender's deposit account as a guarantee for the loans, which is also commonly known as "deposit account pledge" in judicial practice. As the debtor of the margin account pledge contract, if the debtor applies for compulsory execution due to other effective legal documents, the people's court will go to the financial institution to inquire about the debtor's property status and take measures to freeze or deduct the bank account of the person subjected to execution. In this case, the bank, as the pledgee of the margin account pledge contract, will raise an execution objection as an outsider and raise an execution objection on the grounds of infringing the priority of the margin account involved.

Problems existing in judicial practice

The law does not prohibit freezing or deduction, and the court has the power to enforce it.

Some courts believe that the freezing and deduction of margin accounts are not prohibited by laws and judicial interpretations, and the people's courts should implement them according to effective judgments and rulings, and financial institutions should provide assistance. The executing organ has no right to substantially examine the authenticity, legality and relevance of the evidence provided outside the case, so it can enforce it, such as case 1 2.

Case 1: Fuzhou Branch of China CITIC Bank Co., Ltd. objected to the execution of the loan contract with Tang Mou, Xue Mou and Fujian Trading Co., Ltd.-Freedom without prohibition?

In the case of a loan dispute between Xue Mou, the executed person, and Fujian Xin Kai Trading Co., Ltd., tried by Fuzhou court, Fuzhou Branch of CITIC Bank claimed that the deposit was deposited by Hengfeng Guarantee Company in Fuzhou Branch of CITIC Bank, and the court deducted it to deprive CITIC Bank of its pledge right. Fuzhou Intermediate People's Court held that the court has the right to freeze, allocate and reject objections, except for property that cannot be sealed up, detained or frozen according to laws or judicial interpretations.

Case 2: China Construction Bank Co., Ltd. Hefei Luyang Sub-branch and Liu, Hefei CITIC Real Estate Co., Ltd. executed the objection case-the objection of the outsider does not need to be reviewed?

When Hefei City Court deducted the deposit of Hefei CITIC Real Estate Co., Ltd. in Hefei Luyang Sub-branch of China Construction Bank, the outsider objected to the construction of Hefei Luyang Sub-branch, saying that the debtor deposited 5% of the loan amount into Hefei CITIC Real Estate Account as a security deposit, and the pledge was legal and valid, and he enjoyed the priority of compensation according to law. Hefei Intermediate People's Court held that the executing agency had no right to conduct substantive examination on the authenticity, legality and relevance of the evidence provided outside the case, and rejected the objection.

If the transfer of possession is not realized, the pledge will not be established.

Some courts hold that the name of the margin account is still the pledgor, and the pledgor enjoys ownership. The margin account does not constitute a condition for the transfer of possession, and the transfer has not been realized, so the pledge is not established, as shown in Example 3.

Case 3: Zhuhai Branch of China Construction Bank Co., Ltd. and Wu Mou executed the objection case-what is the transfer of possession?

Jieyang City Court executed the case of Wu's dispute with Shenzhen Guangyao Real Estate Co., Ltd. and Zhuhai Zhongrong Financing Guarantee Co., Ltd., and the outsider Zhuhai Branch of China Construction Bank raised an objection, arguing that the court froze the deposit of Zhongrong Company in its two bank accounts of RMB 6,543,800+000,800, which was the pledge deposit provided by Zhongrong Company for the loan of RMB 6,543,800+09, and it enjoyed the priority of compensation. Jieyang City Court held that,

Pledge that does not meet the requirements of specialization is not established.

Some courts, when examining the pledge contract provided by financial institutions, take the random review method and "adapting to local conditions" as the standard, and do not recognize the effectiveness of the pledge, for example, the funds in the account are not fixed, not strictly distinguished from the general account, and the guarantee object is not clearly agreed, such as case 4.

Case 4: China Agricultural Bank Co., Ltd. Lu 'an Gaocheng Sub-branch, Wang and Anhui Dawei Real Estate Co., Ltd. executed the objection case-what is specialization?

China Agricultural Bank Co., Ltd., Lu 'an Gaocheng Sub-branch, in the case of Executive Wang's application for the execution of the proper creditor's rights documents granted by Anhui Dawei Real Estate Co., Ltd., proposed that Anhui Dawei Real Estate Co., Ltd. deposit 65,438+00% of the house purchase loan as the down payment into its deposit account opened in the bank, and the pledge right was established according to law, and it enjoys the priority of compensation according to law. The deposit in this account of Lu 'an Intermediate People's Court has no designated special account, deposit or deposit.

The liquidity clause stipulates that the pledge is not established.

Some courts, in hearing cases in which financial institutions raised objections due to the pledge of margin accounts, held that when the conditions agreed by the parties are met, the pledgee can deduct the funds in the margin account by himself, which belongs to the liquidity clause and should be deemed invalid.

Insufficient publicity, the pledge is not established.

Some courts believe that the specific requirements of security interests are realized through the principle of publicity, and the guarantee of undisclosed things is not recognized and protected by law because of its lack of credibility, and it cannot be used against bona fide third parties. For example, in an actual case, the undertaker rejected the objection of the bank because the publicity was not enough to fight against the third party.

Definition of ownership

Margin account guarantee-monetary chattel pledge

There is no authoritative conclusion about the legal nature of deposit guarantee. Some scholars classify deposits according to whether they have the nature of deposits. Some scholars think that the deposit guarantee is similar to the pledge of rights, while others think that the deposit is a money guarantee. In practice, there is also a dispute between deposit account and account pledge.

Viewpoint: To clarify the legal attribute of the guarantee of the margin account, we need to analyze it from three dimensions: the attribute of currency, the particularity of the margin account and the essence of the pledge of the margin account.

First, the principle of possession and all consistency-analysis of monetary attributes

Can money be pledged? It is a prerequisite for the establishment of chattel pledge. The possession of money is the same as all, that is, the principle of "possession is consistent with all" is as follows: 1. Whoever owns the currency is regarded as having obtained the ownership of the currency, and losing the possession of the currency is regarded as losing the ownership of the currency; 2. Once the money is delivered to others, the ownership is transferred; 3. The use of currency means the punishment of currency ownership, and the right to use currency is integrated with the right to punish.

However, with the development of modern commodity economy, the currency circulation in the financial market presents a trend of virtualization and diversification. "The composition of credit money has changed significantly, that is, the proportion of deposit money in the whole money supply is getting bigger and bigger, while the proportion of cash is getting smaller and smaller, and electronic money has appeared." In addition, the bill recording the obligation of monetary amount plays the role of functions of money in circulation. In this financial environment, the principle of "possession is consistent with all" of money has become loose.

Second, the specific function of the margin account-money is pledged by law.

How to change money from "special movable property" to "ordinary movable property"? When it is realized in the form of currency specialization. In the pledge of movable property, money, as a species, needs to be "specific" as a "pledge" under the pledge, thus completing the tangible or identifiable and transferable possession transformation. The purpose of currency specialization is to restrict the circulation function of currency in a specific form, so as to separate the ownership and possession of currency, so as to meet the requirements of chattel pledge, that is, to make money become ordinary chattel and pledge by law, so as to prepare for the next realization of chattel pledge.

The following three conditions need to be met when the specified currency is pledged: 1. If there is a clear agreement between the two parties or according to the nature of the transaction, the ownership of the currency will not be transferred with the transfer of possession. 2. Ensuring that the inherent circulation function of the currency is actually frozen during the pledge period, ensuring that the currency has no circulation and can no longer circulate, and assuming the function of payment intermediary is the basic legal feature of setting currency specificity. 3. Having a specific account or other storage method, which is enough to ensure that it is not confused with other property of the possessor.

Third, the essence of the pledge of margin account-the pledge of monetary movable property.

China's Guarantee Law and Property Law have not clearly defined the legal status of account pledge of margin financing and securities lending, and there are mainly three representative viewpoints: currency pledge, account pledge and creditor's rights pledge. According to the viewpoint of currency pledge, "the object of pledge is the money in the pledged account, not the account itself"; The view of account pledge holds that "margin account mortgage is a new thing in China, but it is common in mature overseas financial markets and is a typical account pledge"; The view of creditor's rights pledge holds that "once the depositor deposits the money into the bank account, he loses the ownership of the money, but only enjoys the creditor's right to ask the bank to pay the money in his account, that is, the right to claim the money in his account, so it is impossible for the depositor to set a chattel pledge for the money in his account." The object of account pledge should be the right to claim the money in the account, and the nature of account pledge should be creditor's rights. "

Viewpoint: the pledge of margin account belongs to the pledge of monetary movable property in essence.

The margin account itself has no guarantee value.

Security interest is a right to guarantee the realization of creditor's rights, and its content is to directly obtain or control the exchange value of specific property. The establishment of security interest is because the collateral itself has exchange value and circulation function. On the other hand, if something does not have exchange value and circulation function, it cannot be included in the category of collateral. As far as margin account is concerned, it is only an accounting carrier that reflects the changes of funds in the account, and it has no exchange value and circulation function, so it cannot be used as collateral.

The medium of creditor's rights guarantee is the currency in the account.

In reality, according to the agreement between the bank and the debtor, the debtor will inject a certain amount or proportion of funds into the deposit account, and the actual funds in the account will be used as the guarantee of the creditor's rights. Once the debtor fails to perform the debt as scheduled, the creditor will have the priority to be compensated for the funds in the account, that is, the object of the creditor's security interest is the funds rather than the account.

Money can be designated as collateral.

As a universal equivalent, money has the functions of circulation means and payment means. According to Article 85 of the Interpretation of the Guarantee Law, after being designated as a pledge, collateral can be formed. Generally speaking, in order to realize the requirement of specialization of margin account, it is necessary to limit the disposal of funds in margin account and suspend the circulation function and trading function of currency. This has been explained above.

Conceptual clarification

Interpretation of specialization and transfer possession

The pledge of monetary movable property must meet two conditions at the same time: one is the specialization of margin account, and the other is the transfer of possession after specialization, both of which are indispensable However, looking at the current legal and judicial interpretations, there are no clear legal provisions on how to define "exclusivity" and how to understand "transfer possession".

Viewpoint: The legislative purpose and elements stipulated in Article 85 of the Interpretation of Guarantee Law should be strictly examined, and the legal effect of the pledge of margin account should be judged mainly from the perspective of evidence.

Definition of "specialization"

The subject matter of chattel pledge can only be specific chattel, and the type or substitute can only become the subject matter of pledge after it is specified. The unique attribute of the consistency of currency possession and ownership requires that the currency must be made into pledge by law, so as to limit the circulation function of currency and achieve the core requirement of specialization. Defining the specificity of margin account can be judged from the following aspects.

Written pledge contract

The word "should" is used in the law that the contract should be in written form, which shows that the legal form of the contract is a mandatory norm, and the contract is naturally invalid if the parties violate it. Article 64 of China's Guarantee Law stipulates that "the pledgor and the pledgee shall conclude a pledge contract in written form". Therefore, the pledge contract of margin account is an important contract in contract law. No matter whether the subordinate contract is signed separately or the agreed terms in the main contract, it must meet the mandatory requirements of the law, otherwise it will not have legal effect against the third party. For the guarantee clauses clearly stipulated in the main contract terms, and the nature of the funds in the account and the guarantee object are agreed, it can be regarded as a pledge contract.

Correspondence of master-slave contract

Margin account guarantee contract is a subsidiary contract of the main creditor's right contract, and there should be a relationship and correspondence between them. Article 2 10 of the Property Law stipulates that a pledge contract generally includes the following clauses: (1) the type and amount of secured creditor's rights; (2) The time limit for the debtor to perform the debt; (3) The name, quantity, quality and condition of the pledged property; (4) the scope of the guarantee; (5) Delivery time of pledged property. Therefore, in order to complete the correspondence between the master contract and the slave contract, the margin account pledge contract should have the following elements: first, in the margin account pledge contract, the object guaranteed by the funds in the margin account should be clearly and specifically agreed to ensure the connection between the funds in the account and the master contract; Second, it is necessary to make it clear that the funds in the account are the deposit stipulated in Article 85 of the Interpretation of the Guarantee Law, rather than the pledge in the sense of other types of property law and guarantee law; Third, there should be a certain correspondence between the detailed changes of funds in the margin account and the main contract, that is, the changes of funds in the special margin account should have a synchronous one-to-one correspondence with the creditor's rights in the main contract. ?

Independence of margin account

Article 3 of the Measures for the Administration of RMB Bank Accounts, which was implemented by the People's Bank of China on September 1 2003, stipulates that corporate bank settlement accounts can be divided into basic deposit account, general deposit accounts, special deposit accounts and temporary deposit accounts according to their purposes. In these Provisions, there are no special provisions on margin accounts. Therefore, the margin account proposed in Article 85 of the Interpretation of the Guarantee Law should have its own unique attributes: the margin account cannot be confused with the general settlement account, cannot be used for general settlement business, and is different from the general settlement account name; The pledgor has no right to freely control the account, and the account has been in a "frozen" state until the conditions agreed by both parties are fulfilled; The account is managed in a closed way and earmarked for special purposes. ?

Understanding of "transfer possession"

Article 6 of the Property Law stipulates that "the establishment, alteration, transfer and extinction of real property rights shall be registered according to law. The establishment and transfer of the real right of movable property shall be delivered according to law. " Article 64 of the Guarantee Law stipulates that the pledge contract shall take effect when the pledged property is delivered to the pledgee. As can be seen from the above provisions, the transfer of possession is a prerequisite for the establishment of pledge, and it is also an essential feature that distinguishes pledge from other guarantee methods. In judicial practice, how to identify the pledge transfer possession of margin account?

Viewpoint: It can be grasped from two aspects.

On the one hand, it is based on the contractual relationship to complete the intended delivery.

According to the legal understanding, the essence of chattel transfer and possession is the delivery of chattel. Articles 25, 26 and 27 of the Property Law respectively stipulate three fictitious delivery methods: simple delivery, instructed delivery and possession change, and the pledge transfer of possession in the margin account meets the constitutive requirements of possession change. The change of possession is a delivery mode in which the transferor and the transferee enter into a specific contract when the ownership of movable property is transferred, so that the transferor keeps possession and the transferee obtains indirect possession instead of actual delivery.

Viewpoint: Whether the subject matter should be delivered should be determined according to the specific circumstances such as legal provisions, contract stipulations and trading habits. Specifically, the two parties to the margin financing and securities lending account pledge take the account as the carrier and the legal virtual currency as the pledge, and complete the delivery of the collateral through the pledge contract. In the pledge of margin account, based on the agreement of the basic contractual relationship, both parties withdraw a certain proportion of funds as creditor's rights guarantee, and the bank manages and controls the funds in the account. When the pledge contract is established, the bank is deemed to have the conditions of "transfer possession" after legal preparation to obtain possession of the currency and pledge.

On the other hand, it is the actual management and control of the account by the bank.

On the other hand, it is the actual management right and control right of the bank to the account. In the judicial practice of margin financing and securities lending account pledge cases, some banks open accounts in the name of the pledger, while others open accounts in the name of the pledgee, and both parties agree to use the funds in the accounts as the creditor's rights guarantee.

Viewpoint: No matter what form it takes, its core is the actual management right and control right of the bank as a creditor to the funds in the margin account.

In fact, based on the agreement of real right, no matter in whose name the deposit exists, as long as the pledgee can actually distinguish and control the deposit, it will not be confused with other properties of the pledger. Specifically, after the pledgor deposits its money into the agreed deposit account, according to the pledge contract, the money in the deposit account is only used to ensure the payment under the project, and it shall not be used as a daily settlement account, and cash shall not be withdrawn. No matter whose name the account is, in fact, the pledgor can't freely control the account and the funds in the account, but can only be used as a guarantee for specific creditor's rights, and the creditor's bank actually manages and controls the account, which is regarded as a condition of "transfer possession".

Response to the query that the liquid clause is invalid

Article 2 1 1 of the Property Law and Article 66 of the Guarantee Law stipulate that the liquidity clause is invalid. Its main legislative purpose is to prevent creditors from depressing the value of collateral by virtue of their strong position and harming the interests of debtors.

Viewpoint: the pledge of margin account does not violate the current legal provisions, and the liquidity clause is invalid. The reason for this is the following：

Money has become collateral for legal fiction.

As for whether money can be used as pledge, if the principle of "possession is consistent with all" is still adopted, it will inevitably lead to paradox. According to the foregoing, after the funds in the margin account are designated, the currency becomes the pledge, which restricts the payment and circulation functions of the currency, and its main purpose is to realize the separation of the ownership and possession of the currency. Therefore, the pledge contract or clause of the margin account does not violate the prohibition clause in form.

Money is the universal equivalent of the function that needs to be maximized.

Money is a special commodity that acts as a universal equivalent. In the developed commodity economy or market economy, money has the functions of value scale, circulation means, storage means, payment means and world currency. It is stipulated in the terms of the pledge contract or the deposit account that the bank creditor has the right to transfer when the debtor fails to perform the debt at maturity.

Viewpoint: By reducing the intermediate links of auction, sale and discount, reducing the transaction cost of both parties to pledge and enhancing the ability to perform debts is the performance of maximizing monetary function, which is the need of real transaction, and this is also the value and advantage of pledge of margin account.

The transfer of funds by bank creditors conforms to the law.

Article 2 19 of the Property Law stipulates that "if the debtor fails to perform the due debt or realize the pledge right according to the agreement of the parties, the pledgee may agree with the pledgor to discount the pledge, or give priority to compensation with the proceeds from auction or sale of the pledge". From this provision, we know that in order to ensure the timely and full realization of creditor's rights, the legitimate ways for creditors to realize creditor's rights are discount, auction and sale. Through the further analysis of these three ways, we will find a * * * feature: realizing creditor's rights through a certain amount of money. The above three methods will eventually show a certain amount of money. Since the creditor's rights are ultimately realized through the universal equivalent of money, banks certainly enjoy the purpose of realizing creditor's rights by allocating a certain amount of money under the premise that the pledge of margin account is legal and effective, which conforms to the legislative purpose of pledge, will not cause the loss of the value of debt pledge, and is more in line with and follows the trading rules of market economy.

Perfect idea

Establishing the pledge system of monetary movable property

To sum up, it is the dual needs of reality and legislation to establish China's monetary chattel pledge system as soon as possible, which is the fundamental to solve problems in practice. At the same time, for the parties in practice, they can safeguard their legitimate rights and interests by changing the way of guarantee.

First, perfection: legislative filling-a radical solution

Neither the Guarantee Law nor the Property Law provides for the pledge of money. The only provision for the pledge of money is the provision in Article 85 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) promulgated by the Supreme People's Court on September 29th, 2000. Because of its low legislative level and broad provisions, it needs to be improved urgently.

Clarify the legal status and nature

With the continuous innovation of financial products, margin account pledge is widely used in financial markets. However, due to the ambiguity and lag of legislation, the legitimate rights and interests enjoyed by financial institutions face greater judicial risks. In order to guard against transaction risks and maintain the normal financial order, it is suggested that the legal status, establishment requirements and rights relief channels of currency pledge and its legal effect against third parties be clarified in the Property Law, so as to better regulate and adjust the financial market behavior and protect the legal priority of financial institutions according to law.

Clarify the legal status of currency pledge. It is suggested to refer to the Guarantee Law to explain the provisions of Article 85. Chapter 17 of the Property Law should set up a separate currency pledge system, which clearly stipulates that currency can be pledged after being specified, and currency pledge is a legal pledge method.

Clarify the carrier of currency pledge. It is stipulated by general legislation, and the mature ways of currency pledge in practice are absorbed into the law, such as margin account pledge, currency sequestration, and third-party entrusted currency.

Clarify the exception provisions of currency pledge. The general principles of the pledge system are applicable to the currency pledge, but the special attributes of the currency pledge are defined separately, especially in response to the query of the liquidity clause agreed in the currency pledge, and it is clear that the currency pledge is an exception to the liquidity clause.

Clarify the legal effect of currency. According to the general principle of real right for security, the pledgee enjoys the priority of compensation for the legally established currency pledge, which is specifically against the legal effect of the third party.

Clarify the constituent elements of currency pledge

It is suggested that the Supreme People's Court should refer to Article 85 of the Guarantee Law, further refine and clarify the constitutive requirements of "exclusivity" and "transfer possession". Combined with the above contents, the conditions that specialization needs to meet are:

The parties concerned sign a written pledge contract for the margin account or have a clear agreement in the terms of the main contract;

Master-slave contracts are in one-to-one correspondence, and the principal creditor's rights pledged by the margin account are clear, specific and unique;

Margin guarantee accounts are independent, with special accounts and special funds.

On the one hand, the money has actually been transferred to the margin financing and securities lending pledge account, which is always under the actual management and control of the pledgee.

Establish a currency pledge registration publicity system.

For the pledge of margin account, we can also adopt the practice and experience of the registration and publicity of accounts receivable pledge, and establish a query platform for the pledge registration of margin account in the credit information management system of the People's Bank of China.

Therefore, it is suggested that the Supreme Court and the People's Bank of China can refer to the practice of the pledge registration and publicity system of accounts receivable. In 2007, the implementation of Article 223 of the Property Law established the legal system of the pledge of accounts receivable, and Article 228 of the Property Law also stipulated that "the pledge of accounts receivable is established when the credit reporting agency handles the pledge registration". In the same year, the People's Bank of China promulgated the Measures for the Registration of Accounts Receivable Pledge and the Operating Rules for the Registration of Accounts Receivable Pledge in the Credit Information Center of the People's Bank of China, and handled the pledge of accounts receivable in the pledge registration publicity system of the People's Bank of China. The system is an electronic registration platform based on the Internet, and the public can conveniently inquire about the pledge of accounts receivable through the Internet, which has played a good role in publicizing the pledge right and protecting the pledgee from the third party.

Standardize the execution procedures of currency pledge

The deposit account can be frozen, but the deduction is not appropriate. The Supreme People's Court should issue relevant judicial interpretations as soon as possible.

The Provisions on Whether People's Courts Can Take Freezing or Deducting Measures on the Letter of Credit Margin issued by the Supreme People's Court pointed out that "People's courts may take freezing measures on the letter of credit margin according to law when trying or executing cases, but they may not deduct it". Similarly, there are the Notice on Freezing and Transferring Funds in the Settlement Accounts of Securities or Securities Registration and Clearing Institutions of Futures Exchanges, Securities Firms or Futures Brokers, and the Notice on Standardizing the People's Courts' Execution and Financial Institutions' Assistance in Execution according to Law. The above provisions have legislative provisions that the transaction deposit and the bank acceptance bill deposit shall not be deducted. Because the pledge of margin account has similar functions and characteristics to the above margin guarantee, in order to ensure the unity of legislation and judicature, the people's court should refer to the above provisions and freeze the margin account, but it is not appropriate to deduct it.

Two. Recommendation: An alternative within the existing legal framework-palliative measures.

Under the background of the lack of relevant operating procedures and inconsistent application of laws, in order to avoid the legal risks brought by the loan pledge in margin account, banks and other financial institutions can adopt flexible ways to realize the purpose of bank loan creditor's rights guarantee within the legal framework.

Deposit certificate pledge

Article 75 of the Guarantee Law stipulates that the following rights can be pledged: (1) Bills of exchange, checks, promissory notes, bonds, certificates of deposit, warehouse receipts and bills of lading. In the aspect of pledge of rights, China's Property Law has adopted a recognized attitude towards the pledge of certificates of deposit. Article 223 of the Property Law stipulates that the following rights that the debtor or a third party has the right to dispose of may be pledged: (2) Bonds and certificates of deposit. The People's Bank of China has further refined the conditions, processes and operational specifications of the pledge of certificates of deposit in the Management Regulations on Fixed-term Pledged Loans by Units (Yinfa [1999] No.302). Judging from the provisions of the above laws and regulations, the pledge of certificates of deposit, as a legal, clear and operable way of pledge of rights, does not have the risk of legal characterization and application, conforms to the provisions of laws, regulations and rules, and has detailed and specific operating procedures. Therefore, banks can choose to pledge certificates of deposit to guarantee their creditor's rights in loan business.

Compulsory notarization of pledge contract

In civil and commercial legal relations, the autonomy of the parties should be fully respected, and freedom is freedom without prohibition. As long as the margin account pledge contract conforms to the existing legal provisions, it can be given the effect of enforcement. "If the law permits and the debtor promises not to perform at that time, the creditor may directly apply to the court for enforcement". The margin account pledge contract is a kind of creditor's rights document, and it also conforms to the provisions of Article 2 "Other creditor's rights documents that meet the conditions of giving execution effect" in the Joint Notice of the Supreme People's Court and the Ministry of Justice on Relevant Issues Concerning the Enforcement of Creditor's Rights Documents by Notary Institutions.

With the continuous development of China's market economy, the continuous promotion of financial system reform and the continuous introduction of financial business innovation, financial security issues are crucial, because it directly affects the overall development of China's economy and society. Therefore, in view of the emerging new economic relations in the field of economic development, it is necessary to regulate and adjust them through laws, and it is urgent to follow up with legislation, which should respond to the needs of reality.