论储蓄合同的成立

尽管各国普遍将储蓄合同作为实践合同和要式合同 ,但是储蓄合同的实践性和要式性目前尚无统一的认定标准 ,对类似案件各国各地区法院判决各异且难有说服力 ,然而这一标准的正确界定对确认当事人的权利、义务以及风险的承担具有重要的意义。本文归纳并分析了实践中出现或可能出现的各类情况 ,以期全面、准确地认识储蓄合同的实践性和要式性。同时还引入民法的缔约过失原则 ,提出在诸多情形中尽管储蓄合同尚未成立 ,储蓄机构仍应承担交存款项丧失的风险 ,因为处于强者地位的储蓄机构有在其领域内保障交存款项安全的先契约义务

Formation of A Savings Contract

A savings contract is universally accepted as a real and causal contract in most countries. But it is difficult to be judged due to not having established standards. Different judgements are passed on similar cases and not convincing. Correct standards are needed to be established for confirming rights and obligations of parties and determining the risks each party should take. This article sums and analyses different circumstances to expound the qualities of a savings contract as a real and causal contract. The theory of liability for wrongs in conclusion of contract is appllied to point out that in many cases the savings bank should take the risk of unexpected loss of money without formation of a savings contract, because as a powerful party the savings bank has the obligation to ensure money against possible dangers in its extent of control.