legal authority for checking and freezing deposits

The most important legal basis for determining the power and authority for checking and freezing deposits is the Commercial Bank Law. According to the current laws and regulations, the authority of each organ is as follows:

The units that have the right to inquire are public security, procuratorate, court, security organ, supervision, military security department, prison security department, customs, taxation, auditing and CSRC; Units that have the right to freeze are public security, procuratorates, courts, security organs, military security departments, prison security departments, customs and taxation; There are very few units with the right to deduct, only courts, customs and taxation.

Specifically, we can make classified statistics according to the completeness of authority:

1. Departments with complete power to inquire, freeze and deduct deposits

(l) courts. The basic legal basis for the investigation, freezing and seizure of the public, procuratorial and legal departments is the Civil Procedure Law and the Criminal Procedure Law. Because the public security organs and procuratorates are not judges (judicial organs), they only have the right to inquire and freeze, but not the right to deduct, which is actually closely related to the functional orientation of the public, procuratorial and legal departments.

(2) tax authorities. Article 54 of the Law on the Administration of Tax Collection stipulates: "The tax authorities have the right to … inquire about the deposit accounts of taxpayers and withholding agents engaged in production and business operations in banks or other financial institutions. ..... you can check the savings deposits of the suspects in the case. " Article 38 stipulates: "... notify the taxpayer's bank or other financial institution in writing to freeze the taxpayer's deposit equivalent to the taxable amount"; "... the tax authorities may notify the taxpayer's bank or other financial institution in writing to withhold tax from its frozen deposits." The tax authorities help the state to collect accounts. If there is no one-stop authority, the efficiency will definitely be greatly reduced. Wouldn't it be a big deal if the state's expenses are not settled? Understand!

(3) Customs. Item 5 of Article 6 of the Customs Law stipulates: "... you can inquire about the deposits and remittances of the units and personnel involved in the case in financial institutions and postal enterprises." Article 61 stipulates: "The customs may notify the taxpayer's bank or other financial institution in writing to suspend the payment of the taxpayer's deposit equivalent to the tax payable; The customs may notify the taxpayer's bank or other financial institution in writing to withhold tax from the deposit that it has suspended payment. "Interestingly, in the concept of freezing, the term" suspension of payment of deposits "in the Customs Law is really wordy. Article 37 of the Customs Law states: "... If necessary, the bank may be notified to withhold it from the deposit of the guarantor or taxpayer. Article 23 of the Detailed Rules for the Implementation of Administrative Penalties of the Customs Law stipulates that the customs may notify the bank or post office in writing to suspend the payment of the deposits and remittances illegally obtained by smuggling, and notify the depositors or remitters at the same time. The period of suspension of payment shall not exceed three months. In addition, Article 14 of the Customs Inspection Regulations stipulates: "The customs ... may inquire about the deposit account of the inspected person in commercial banks or other units." As an administrative regulation, the Customs Inspection Regulations can only stipulate the right to inquire about corporate deposits in accordance with the Commercial Bank Law, and it is not broken!

2. Only departments with the power to inquire and freeze deposits

These departments are: public security, procuratorial, security, military security, prison security and customs smuggling investigation bureau. The Criminal Procedure Law also limits the powers of public security organs and procuratorates. At the same time, the Criminal Procedure Law also gives security organs, military security departments and prison security departments the same rights as public security organs when conducting criminal investigations. Article 4 stipulates: "State security organs shall handle criminal cases endangering state security organs in accordance with the law and exercise the same functions and powers as public security organs"; Article 225 stipulates: "The military security department shall exercise the right to investigate criminal cases that occur within the military. Cases in which criminals commit crimes in prisons are investigated by prisons. The relevant provisions of this Law shall apply to the military security departments and prisons in handling criminal cases. "

It should be noted that at the beginning of 1999, with the approval of the State Council, the General Administration of Customs and the Ministry of Public Security set up the Smuggling Crime Investigation Bureau of the General Administration of Customs. After the Customs Law was revised in 2, this was clearly stipulated, giving the Customs Smuggling Investigation Bureau the same powers as the public security organs. Article 4 of the Customs Law stipulates: "The public security organ that investigates smuggling crimes by the customs shall perform investigation and detention. The duties of arrest and pre-trial shall be handled in accordance with the provisions of the Criminal Procedure Law of the People's Republic of China. "

3. Departments with only the power to inquire about deposits

(1) Supervision departments. Article 21 of the Administrative Supervision Law stipulates: "Supervisory organs ... may inquire about the deposits of suspected units and personnel in banks or other financial institutions; When necessary, the people's court may be requested to take preservation measures to freeze the deposits of suspects in banks or other financial institutions according to law. " It seems that the supervisory organ can only conduct due diligence. At present, the supervisory organ and the discipline inspection organ are co-located and exercise two functions. If it is really necessary for the discipline inspection organs to inquire about deposits or freeze deposits in banks or other financial institutions when handling cases, whether they file a case in the name of the discipline inspection organ or in the name of the supervisory organ, they should use the supervisory documents in the name of the supervisory organ at or above the county or regiment level, and should strictly perform the examination and approval procedures according to regulations. It should be noted that both the supervisory organ and the discipline inspection organ should use the text in the prescribed format when requesting the assistance of the bank. For details of this text format, please refer to the annex format of "Provisions on Several Issues Concerning the Implementation of Article 21 of the Administrative Supervision Law of the People's Republic of China" jointly issued by the Supreme People's Court and the Ministry of Supervision (including filing approval form, submission for preservation and submission for lifting of preservation).

(2) audit institutions. Article 33 of the Audit Law: "When conducting an audit, an audit institution has the right to investigate the relevant issues of the audit matters to the relevant units and individuals and obtain relevant certification materials." There is no clear use of the word deposit inquiry here, so it seems that it is really due diligence. Later, the State Council's "Regulations on the Implementation of the Audit Law" made this issue clear. Article 31 of the Regulations stipulates: "Audit institutions … have the right to inquire about the deposits of audited entities in financial institutions and obtain supporting materials, and the relevant financial institutions shall provide assistance and supporting materials." As the Regulations belong to the administrative regulations of the State Council, they are also in line with the legislative provisions of the Commercial Bank Law on inquiring about corporate deposits. In addition, according to the Notice of the National Audit Office and the People's Bank of China on Auditing Organs Inquiring about the Deposits of Audited Units in the Process of Auditing Law Enforcement, the notice of military auditing organs (No.35 [1999] of March 29, 1999) applies, and military auditing organs can also inquire about the deposits of units.

(3) China Securities Regulatory Commission. Article 168 of the Securities Law stipulates: "The the State Council securities regulatory body has the right to take the following measures when performing its duties according to law: inquire about the capital accounts and securities accounts of the parties and the units and individuals related to the investigated events." In addition, the CSRC can also inquire about unit deposits when it is necessary for the relevant behavior of futures trading. Article 52 of the Regulations on the Administration of Futures Trading issued in the State Council stipulates: "The futures regulatory agency of the State Council has the right to inquire about the margin account and bank account of the unit related to the incident under investigation."

(4) the financial department. Article 32 of the Accounting Law stipulates: "... when a major violation of the law is discovered, the financial department of the State Council and its dispatched offices may inquire about the relevant information from the units that have economic business dealings with the supervised units and financial institutions that have opened accounts with the supervised units, and the relevant units and financial institutions shall give support." Whether the "relevant information" here includes bank deposits is not clearly stated. Although the Ministry of Finance and the People's Bank of China later issued the Notice on Several Specific Issues Concerning the Inquiry of the Ministry of Finance and its dispatched offices about the situation of the supervised units, it is still unclear. In addition, Article 22 of the Regulations on Penalties and Punishment for Financial Violations stipulates: "When the financial department, auditing organ and supervisory organ conduct an investigation or inspection according to law, ... they may inquire about the deposits of the units under investigation and inspection from financial institutions, and the relevant units and financial institutions shall cooperate."

(5) CBRC. Article 25 of the Anti-Money Laundering Law: "If further verification is needed in the investigation, the account information, transaction records and other relevant materials of the investigated object may be consulted and copied with the approval of the head of the anti-money laundering administrative department of the State Council or its provincial-level agency; Documents and materials that may be transferred, hidden, tampered with or damaged may be sealed up. " Article 26: "If the suspicion of money laundering cannot be ruled out after investigation, it shall immediately report the case to the investigation organ with jurisdiction. If the customer requests to transfer the account funds involved in the investigation abroad, with the approval of the person in charge of the anti-money laundering administrative department of the State Council, temporary freezing measures can be taken. " Hehe, there is a temporary freezing right in it, so it may be a bit inappropriate to fall into the third category.

(6) Personal inquiry about housing accumulation fund. The State Council's "Regulations on the Management of Housing Provident Fund" stipulates in Article 36: "Employees and units have the right to inquire about the deposit of their own housing provident fund. The housing provident fund management center and the entrusted bank shall not refuse the withdrawal. " In this way, employees can inquire about the housing provident fund deposits of their own units in the bank in their own names, setting a precedent for individuals to inquire about non-personal deposits.

4. Authorities that have lost or partially checked the power of freezing and withholding

(1) Industrial and commercial authorities. The Regulations on Administrative Punishment of Speculation issued by the State Council on September 17, 1987 belongs to the administrative regulations of the State Council. According to the provisions of the Commercial Bank Law, administrative regulations have no right to stipulate the freezing of deposits, so this provision was abolished. Similarly, the Detailed Rules for the Implementation of the Regulations on Administrative Punishment of Speculation promulgated by the State Administration for Industry and Commerce is a departmental regulation, which has no right to stipulate the inquiry, freezing and deduction of deposits, so this provision is also invalid. Please note, however, that according to the Law of the People's Republic of China against Unfair Competition, "the supervision and inspection departments have the right to exercise the following functions and powers when supervising and inspecting acts of unfair competition: to ask the operators, interested parties and references under inspection according to the prescribed procedures, and to request proof materials or other materials related to acts of unfair competition;" Therefore, the People's Bank of China's Head Office "Regulations on the Management of Financial Institutions' Assistance in Inquiry, Freezing and Deduction" also recognizes the inquiry right of industrial and commercial authorities. According to Article 4 of the Notice of the General Office of the State Council on Forwarding the Opinions of the Administration for Industry and Commerce and Other Departments on Severely Cracking Down on Illegal Business Activities such as MLM and disguised pyramid schemes: "With the approval of the director of the Administration for Industry and Commerce at or above the county level, the relevant administrative authorities for industry and commerce will notify the opening bank to suspend its settlement business within six months with valid approval documents, and all banks should support and cooperate." According to the regulations, the industrial and commercial authorities have the power to suspend settlement within six months. Is this a freeze?

(2) People's Bank of China. Before the implementation of the People's Bank of China Law and the Commercial Bank Law, some administrative regulations of the People's Bank of China stipulated that the People's Bank of China could inquire about and freeze bank deposits and deduct the deposits of financial institutions in the People's Bank of China. After the promulgation and implementation of the above two laws, the People's Bank of China also lost its power to freeze and deduct deposits. However, there are different views on whether the People's Bank of China has the right to inquire about bank deposits. Some people think that the Law of the People's Bank of China and the Law of Commercial Banks do not clearly stipulate that the People's Bank of China should inquire about bank deposits. Therefore, the People's Bank of China has no right to inquire about deposits. Some according to Article 32 of the Law of the People's Bank of China: "The People's Bank of China has the right to audit, inspect and supervise the deposits, loans, settlement and bad debts of financial institutions at any time." And Article 62 of the Law on Commercial Banks: "The People's Bank of China has the right to inspect and supervise the deposits, loans, settlement and bad debts of commercial banks at any time in accordance with the provisions of Chapters III, IV and V of this Law. During inspection and supervision, the inspection and supervision personnel shall produce their legal certificates. Commercial banks should provide financial and accounting materials, business contracts and other information related to business management in accordance with the requirements of the People's Bank of China. " Therefore, the People's Bank of China has the right to inquire about bank deposits. In fact, the People's Bank of China checks whether the number, types and interest rates of deposits absorbed by financial institutions meet the requirements. At this time, the behavior of inquiring about deposits is different from the inquiry measures taken by judicial and administrative organs to urge obligors to fulfill their debts, but the inspection of bank operations.

5. Some departments with unclear authority

There is another situation in reality, that is, the vague and general provisions of relevant laws and regulations are difficult to grasp in operation, such as the price department. Article 34 of the Price Law stipulates: "When conducting price supervision and inspection, the competent price department of the government may exercise the following functions and powers: inquire and copy account books, bills, vouchers and other materials related to price violations, and check bank materials related to price violations;" Whether the "bank information" here includes bank deposits is also incomprehensible. It should be noted that the aforementioned Administrative Regulations on Assistance in Inquiry, Freezing and Deduction of Financial Institutions by the Head Office of the People's Bank of China did not recognize the inquiry right of the competent departments of government agencies!

(II) Deposits that cannot be frozen or deducted and special circumstances

1. Deposit reserve, no organ has the right to freeze or deduct

Article 34 of the Provisions of the Supreme People's Court on Several Issues Concerning the Execution of People's Courts (Fa Shi [1998] No.15) stipulates: "If the person subjected to execution is a financial institution, the deposit reserve and reserve funds deposited with the People's Bank of China shall not be frozen or deducted. Therefore, the people's court cannot freeze and deduct the deposits of financial institutions in the People's Bank. It should be noted that article 34 also stipulates that; "However, their deposits in this institution and other financial institutions, as well as other deposits in the People's Bank of China, can be frozen and allocated", which was introduced before the reform of the deposit reserve system of the People's Bank of China. However, after the reform of the deposit reserve system of the People's Bank of China on September 11, 1999, the deposits of financial institutions in the People's Bank of China have no other deposits except the deposit reserve, so this regulation can no longer be applied. The people's court can't freeze and deduct the deposits of financial institutions in the People's Bank according to this provision. At this point, when the judicial department transfers the deposit reserve to the People's Bank of China on this basis, the People's Bank of China may need to patiently explain to the judicial department.

2. Closed loans cannot be frozen and deducted by the judicial department

In the Notice of the Supreme People's Court on Several Issues Needing Attention in the Implementation of the Interim Measures for the Administration of Closed Loans and the Interim Measures for the Administration of Closed Loans of Foreign Trade and Economic Cooperation Enterprises, it is stipulated that the people's court shall not take property preservation measures or execute them first for the debtor's closed loan settlement account; The money in the closed loan settlement account of the person subjected to execution shall not be executed. Article 14 of the Interim Measures for the Management of Closed Loans (Yinfa [1999] No.261) stipulates that the judicial department should not freeze closed loan accounts and withhold funds from special accounts.

3. Treasury funds can't be frozen and deducted

Treasury funds belong to the state financial revenue, which is different from bank deposits. Judicial and administrative organs should not regard them as the executable property of financial institutions, and inquire, freeze and deduct treasury funds. In the People's Bank of China "on the inquiry, freezing and deduction of treasury funds are