Study On Judicial Adjudication Of Acceleration Clause In The Bankruptcy Procedure

With the development of the financial industry,the acceleration clause has been adopted by more and more banks.The acceleration clause plays an important role in guaranteeing the security of bank funds and preventing financial risks.When the debtor goes into bankruptcy,the force of this clause and the following behavior of bank deducting from debtor's account for repayment will be questioned by Enterprise Bankruptcy Law of the People's Republic of China(hereinafter referred to as the Bankruptcy Law)and the relevant judicial interpretations test,and face the risk of revoking by the right to revoke of bankruptcy managers.This article use a real case to put forward related controversial questions,and based these questions,this article research the basic theory of acceleration clause,application scope and the obstacle of the application of acceleration clause—the right to revoke in bankruptcy.And then,combined the real cases in judicial practice,from the angle of protecting the safety of bank funds,making banks dare to offering loans and indirectly promote economic development,this article considers how to improve the right to revoke in bankruptcy and provide some suggestions to the judicial cases involving acceleration terms.This paper is divided into four parts as follows:The first part introduces a controversial case in practice,through the different view in the first instance and second instance,concludes the main controversy focus in acceleration clause in practice are:(1)How to affirm the properties and force of acceleration clause.(2)Is the right to offset in bankruptcy law can be applicable to a bank's deduction for repayment ? And is right to offset in civil law can be applicable?(3)Is the bank's behavior of deducting money from debtor's account for repayment equal to “ early repayment of claims that are not yet due” of Bankruptcy Law Article 31,paragraph 4.And this involves to the affirmation of the force of acceleration clause.(4)Is the bank's behavior of actively deducting money from debtor's account for repayment equal to actively repayment of debtor? This involves to the application of right to revoke in bankruptcy.(5)Is the bank's behavior of actively deducting money from debtor's account defined as liquidation behavior in dangerous period of Bankruptcy Law Article 32.This part use the very controversial focus in practice to put forward the main questions that is to be discussed in the following parts.The second part introduces the fundamental theory and application scope of acceleration clause,mainly include the concept,related legal provisions,and then mainly analysis the theoretical foundation of acceleration clause--the right to offset in the civil law and in bankruptcy law.This part first introduces the legal provisions and basic theory of the the right to offset in the civil law.This article put forward that the right to offset in bankruptcy law is the specification of the right to offset in the civil law,and the behavior of deducting money for repayment can be applicable to the right to offset in the civil Law under certain conditions.The third part discusses the obstacle of the application of acceleration clause – the right to offset of bankruptcy law.This part first introduces the concept of the right to revoke,and then introduces the related theory,introduces the elements of the right to revoke.The author thinks that the elements of the right to revoke is divided into subjective,objective elements,and elements of time.Our current law doesn't take the subjective elements as the constituent elements,the author thinks that can be established in the future legislative or judicial interpretation.Finally,this part analyzes the right to revoke in bankruptcy and the application of acceleration clause.The fourth part,based on the above discussion,analysis and evaluate the focus of the cases in the first part,and then put forward suggestions about the perfection of the right to offset in bankruptcy law and the judicial criterion of cases related to acceleration clause.The author believes that the act of deduction for repayment based on acceleration clause can claim an offset under some conditions,the debtor deposits in the bank is the creditor's right that could be offset by consensual,whether the difference between its quality between the debtor's debt in bank.And in terms of the application of the right to revoke in bankruptcy law and acceleration terms,the author thinks that the act of deduction for repayment based on acceleration clause cannot completely taken as the object of the right to revoke,and consummate the system of right of to revoke in bankruptcy are proposed.Finally,this part discusses the review main points of acceleration clause in bankruptcy procedure,and several problems that should be focused and principles should be complied with.