Legal Analysis Of The Acceleration Clause Application For Bank Loan

With the development of China's financial sector, banks and other finance institutions introduced the practice of international lending businesses such as acceleration clause. As an important risk prevention term which banks took to guard loan safety in the loan contract, acceleration clause was not prescribed by law so far, It's nature and legitimacy is still in controversy. Different parties make different specific provisions on this clause, in which case, there are many disputes in judicial practice. In particular, before the debtor commenced bankruptcy proceedings, when banks called in loans ahead of time in the legal period of right of bankruptcy according to this clause, bankruptcy trustee can issue the bankrupt revocable right to ensure equitable repayment of the debtor. Further more, because of the vague legislation on bankrupt revocation right, there are quite many problems in the legal application of this clause, especially in the application of bankruptcy law.This article refers to a classic case of dispute over bankruptcy revocation due to acceleration clause, combining with the controversy focus of this case, considering and analyzing the legal application of acceleration clause, particularly revisiting this clause basic on bankruptcy law, hoping to provide some perfect ways of thinking for the trial practice on such cases.The first part is a brief introduction about the case, including the cause of action, main factual behavior of plaintiff and defendant, the focus of controversy, and the outcome of the trial.The second part is the analyses of the basic legal application of acceleration clause, mainly describing the purpose of this clause, and giving theoretical analysis to views on the legal nature of this clause of all parties. At the end of this part, the author analyzes the validity of this clause in contract law and bankruptcy law.The third part is the analyze of satisfaction of the accelerated maturity,mainly analyzing the accelerated maturity clause of major banks from the empirical view. At first, this article concludes three conditions of accelerated maturity and put forward author's own views about acceleration clause regulation on the basis of benefit balance. Secondly, at this part, the author also analyzes how to judge the achievement condition of accelerated clause.The forth part is the resolution of the application of accelerated maturity clause and bankruptcy revocation right. Firstly, this part introduces the relevant legal provisions of bankruptcy revocation right, and explains the constitutive elements of this right. And then, the article specific analyze on the following two controversial issues: whether perpetrator's subjective malicious could be the constituent elements of bankruptcy revocable behavior and whether the negative of the debtor could be apply to bankruptcy revocation right.The fifth part is the author's comments and reflection on this case based on the above discussion, which is the idea of judicial arbitration about the legal application of accelerated maturity clause.