基于银行帐户的建立,即成立存款合同而发端的银行与客户 的关系,其基本属性应该界定为借贷契约而信托关系。银行与客户的关系 和公司于股东的关系一样。虽然信托关系一样,但是控制强度不一样。因 为银行拥有经营的专业性、高风险性和保护供利益的重要性。由于这样的 理由,银行董事应对银行及其股东、存款人,以及代表公共利益的政府金 融管理部门等银行利益相关者承担责任。银行董事也承担和一般公司董事 相同的私法上的信义义务。 中国目前银行董事责任的立法并不适应银行的公司治理特殊性的要求, 对银行董事的责任的衔接缺乏规定。对此,应在《商业银行法》中确立利 益相关者共同治理模式,具体规定董事的管制义务和信义义务;将信义义 务的对象扩大到存款人等利益相关者,赋予存款保险公司代表存款人对银 行董事提起诉讼的权利;规定私人对银行董事违反银行监管部门规章所造成的损失可提起诉讼,使银行董事的 管制责任具有可诉性。
When a customer opens a bank account, a contractual relationship between the Bank and customer is created in terms of the deposit money and, generally, a loan agreement and trust relations belong t o such relationship. The relationship between the Bank and its cust omer is the same to that between a company and its shareholder. However, even though the trust relationship in those two cases is t he same, the level of control is different. The Bank has specialty in business management and function in preventing high risk and prot ecting the public interest. For this reason, the Bank's director is re sponsible for the interest of persons concerned because he or she re presents the Bank, shareholders, depositor and government- manage d public interests. In case of developed countries, the directors of th e Bank have fiduciary duty under private law. Present legislation of China regarding the responsibility of the dir ectors of Banks does not meet the demands of special corporate go vernance of the Bank and there also exist a legal vacuum. Correspo nding to this, sets forth a model of joint control of persons concerned and specifically prescribes the directors ' duty of care and fiduciary duty. The scope of persons to which t he directors have fiduciary duty expands to include the interested p arties of depositor so that such parties have the right to file a suit against the directors. This is for the instances where the director o f a Bank violates his or her supervisory duties which causes a loss to a company. In this paper, in the respect of directors' duties, I examine the s cope of the Bank and customers first and then explore the nature a nd characteristics of the relationship between the Bank and its cust omers. Lastly, I deal with the fiduciary duty of the directors of Ban k. In particular, I examine whether, like those in Korea, the Bank's directors in China has heavier fiduciary duties compared to those of general companies or not and then I discuss the things to be impro ved with regard of that fiduciary duty.