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I would like to imagine the facts of Tai Hing case occurred in the Mainland China. Under the civil law principle, the case should apply the fault-based liability. Of course, the bank was liable of detecting the cheque forgery, but on the side of customer, he seemed to having no fault on ignoring checking the statements at the first glance, because no such a compulsory obligation had been imposed on him by law expressly. Nevertheless, during the course of performance of contracts, parties shall abide by good faith and carry out the obligation of notice and assistance, etc. based on the character and purpose of the contract or the transaction custom. The bank statement shall be such a custom that purpose is to tell the customer the status of account. He should occasionally check the balance of account in order to prevent drawing cheques from overdraft. He may not check the statement but he ought to know the status of his account. If he is under a circumstance he ought to know something, his negligence of not knowing should not be excused. In respect of the facts in Tai Hing case, if not in the primal several months ought the plaintiff to know the status of account, at least he ought to know this until he needed some figures in his account for other purposes such as tax report, accounting assessment. I think these evidences are justified to the banks sharing the liability with their customer.
6. Conclusion
Since the comparisons in this essay did not cover all the aspects of bank and customer relationship, so much comparative study cannot achieve a constructive conclusion about which is good law governing this relationship. Analysis from the select cases suggests that the common law is not unquestionable from the perspective of today’s banking services. The Chinese banking law is still simple and general. Sometimes I had to invoke the principles from contract law and general civil law rules to make a test on case study. This is usually the way of Chinese lawyers in dealing with banking cases. Under the current Chinese legal system, customers are seemingly better protected. It is not the case that the banking law is better. Contrarily, the law has failed to intervene into the traditions. The four dominant state-owned commercial banks, employing 1.76 million clerks , have created the world’s biggest banking net. The competition of banking just started. Since the Chinese leaders have tried to recapitalize the state banks, decontrol the interest rate, and uniform the competitive standards, how to retain the confidence of customers in banking system during the future of a real commercial age is a crucial subject for the Chinese legislators. Some particular principles created by common law have reached a universal level of application. They may be borrowed into the further reform of Chinese banking law system. However, as the changing scene is arising in the banking world, the law governing the bank and customer relationship remains to be a dynamic stream.
【参考文献】Bibliography:
Books:
L.D. Crerar, Law of Banking in Scotland, (1996)
E.P. Ellinger, E. Lomnicka & R.J.A. Hooley, Modern Banking Law, 3rd edition, (Oxford: 2002)
Nicholas R. Lardy, China’s Unfinished Economic Revolution, (Brookins Institution Press: Washington, D.C., 1998)
Paget’s Law of Banking, 10th edition, (Butterworths: 1989)
Paget’s Law of Banking, 11th edition, (Butterworths: 1996 by M Hapgood QC)
Gong Haocheng & Dai Guoqiang, 2000 Report of China’s Financial Development, Chinese version (Shanghai Financial University Press: 2000)
Chinese legislations:
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