Research The Problem Of "Acceleration Clause" And Bank Settlement Behavior In Bankruptcy Cases

Banks in order to protect their rights and security, often in the loan contract with the borrower agreed to accelerate the maturity of the term. According to the loan contract "accelerated maturity terms, when borrowers appears to accelerate due reasons stipulated in the contract, the bank announced the maturity of the loan, the banks have the right to recover the advance payment of principal and interest of the loan, the loan contract terminated. From the purpose of setting up the term of maturity, it can better protect the creditor's rights of the bank. In general, although the nature of the term to accelerate the maturity of the controversial, but still generally recognized its legitimacy. Banks buckle delimit the prepayment behavior in the bankruptcy case of theory and practice of dispute are relatively large, leading to different codefendant appears in the administration of justice, courts and some support to revoke the bank to deduct the prepayment behavior, some courts is not supported revocation of bank deduct prepayment behavior. According to the idea of judicial decision, that is, the court announced to accelerate the maturity of the terms of the bank to judge, and then determine the basis of withdrawal is what, to conduct an analysis. The author thinks that are analyzed, through which the bank loan contract accelerated maturity terms of nature is a conditional clause of the contract, the effect should be recognized as valid, according to the bank for accelerated maturity terms and deduct the prepayment behavior nature is is essentially a kind of offsetting behavior, but in case of bankruptcy, the Bank buckle delimit the prepayment behavior should be in line with the conditions of the application of Article 32 of the bankruptcy law can according to Article 32 of the revocation.In addition to the introduction and conclusion, this paper consists of three parts:In the first part, it is an empirical analysis of the litigation case of bankruptcy revocation right of bank deduction based on the accelerated maturity provisions,The author through the North magic weapon, no case and the referee instrument network to find 16 valid cases, the court's decision is divided into support for the revocation and does not support the revocation of the analysis were carried out, Existing different courts to the same facts make different judgments of the phenomenon, then analysis of this phenomenon of reasons may have the following several points:there is no clear standards; judge of bankruptcy revocation right of recognition of understanding is not. The interests of the protection of the bank and the manager are different. And then put forward the problem that this article is to discuss, what is the nature of the term of maturity of the loan contract in the bank, and how to; What is the nature of the bank's settlement of the settlement under the terms of accelerated maturity, in the case of bankruptcy, the bank's settlement behavior can be revoked as well as the revocation of the basis. Finally, analysis the necessity to solve these problems exist as follows:for future decisions of the court of the reference; protect banks and debtors, the balance of interests between banks and other creditors; national in disposal of zombie companies to prevent bank abuse accelerated maturity terms, while preventing malicious evasion of debt of enterprises.The second part is to analyze the nature and effect of the maturity of the loan contract in the bank, and then analyze the nature and effect of the accelerated maturity clause in the bank loan contract. First, the concept and the source of the term of maturity are introduced, and the term of maturity is the transformation of the international lending business practices. Then it introduces the legislative basis and the concrete embodiment of the acceleration of the term of maturity. It is generally acknowledged that the term of maturity is generally accepted in our country. Accelerate the maturity terms of nature has several different points of view, some scholars think conditions attached to the terms of the contract, some scholars a on the termination of the terms of the right, some scholars think is independent of the liability for breach of contract responsibility, some scholars believe that is both lenders and borrowers agreed to lift the right terms, some scholars think exercise unassured pleadings. Followed by an analysis of the effectiveness of the accelerated maturity provisions in general, in the absence of violation of laws, administrative rules and regulations, we should acknowledge the validity of the term to accelerate the maturity. The bankruptcy case accelerated maturity terms because before entering into bankruptcy procedures, has come into effect, its nature and effectiveness were not affected by the bankruptcy of impact, but should limit accelerated maturity terms and conditions of the specific reasons and specific reasons will impact of accelerated maturity in terms of potency.The third part is to analyze the nature of the bank settlement behavior based on the accelerated maturity provisions. The nature of the bank's deduction of the settlement behavior also has different views, It is believed that the exercise of the right to set off and not to exercise the right to set off, some scholars believe that the bankruptcy case of the bank is to exercise the right to discharge the liquidation of bankruptcy. The author thinks that the bank deduction is a kind of act of offsetting, but it is not the right of set off. Then the bankruptcy case bank buckle delimit the prepayment behavior analysis, mainly from the bankruptcy law of the People's Republic of China on bank buckle delimit the prepayment behavior rules, banks buckle delimit the prepayment behavior should be revoked and deducting the bank delimit the prepayment behavior should be according to the bankruptcy law in Article 32 of the revocation of the three aspects to discuss. It is put forward that the bank deduction settlement act can be revoked in accordance with the applicable conditions of the thirty-second article of bankruptcy law. In the end, it is suggested that the theoretical analysis of the judgment book should strengthen the theoretical analysis of the judgment, which is the guiding role of the trial of the bankruptcy revocation right of bank deduction.