Research On The Application Of Acceleration Clause In The View Of Bankruptcy

Along with the widely application of the Acceleration Clause in the Bank lending contract in Business, the issues, such as legality and application are still controversial, especially whether it is possible to apply and how to apply the Clause when the borrower firms bankrupt. The author attempted to research on the issues related to the application of the Acceleration Clause under bankruptcy.Chapter I represented the literature review on the Acceleration Clause in the Bank Lending Contract. The Accelerating Clause originated from the United Commercial Code(UCC), in which the Accelerating Clause was stated that the contract party or successor has rights to enforce the counter partner to pay in advance, to request for collateral or to request for additional collateral under arbitrary or unsafe circumstance. In China, the regulations on accelerating clause can be referred to “Contract Law”, “General Rules on Loans”, etc. In order to classify the application of Accelerating Clause in bankruptcy cases, the classification on legal nature of the behavior is important. The author concluded that the behavior of accelerating expiry, which is independent breach form, is different from termination on the basis of research on contract law, legal effects of acts and judicial practice.The author introduced the foreign regulations on application of accelerating clause. Additionally, the author classified the causes of accelerating clause on the basis of cases on two banks accelerating expiry. Moreover, the author pointed out the problems arising from regulations on accelerating clause in China, such as the control on accelerating maturity is too broad, which results in the bankruptcy crisis easily. Thus, the judge in the trial of such disputes should determine that whether the conduct of business loans endanger the safety of bank credit. Chapter 1 also concluded the positive and negative effects of accelerating clause at the end. As a whole, Chapter 1 illustrated the legal basis of accelerating clause, on the views of concept, legal nature, the trigger situation, and functions. At the meanwhile, the author analyzed the problems might arising from the application, and offered reasonable suggestions, for the purpose of improving the action of bank accelerating expiry.Chapter II is the application and exception of Acceleration Clause in Bank Lending. Firstly, this chapter deeply summary the Tatbestand bankruptcy rescission right and the type of withdrawing, further review the bankruptcy rescission rule. Chapter I has expounded the rationality and legality of Acceleration Clause in Bank Lending, when the bank claim Acceleration, all the lending of enterprise has Acceleration, the Article 31 of the Enterprise Bankruptcy Law. According to whether the Acceleration Clause can be applied to Article 32 of Enterprise Bankruptcy Law, In practice, the focus of contention is whether the malice of creditors belong to the preferential transfer. The author consider the Enterprise Bankruptcy Law should protect the benefits of all creditors as well as the normal transaction security, based on this, it puts the malice of creditors as the Tatbestand of revocation of biased act. In the foundation of four requirements: one is entitled to exercise its Mortgagee’s right or Pledge; Second is receiving loan repayment in cash; Third is deduction payment. The author consider when the bank obviously know the enterprise is insolvency, the creditors still need to liquidate date, should be applicable for the bankrupt revoking rules. For this circumstance that deduct loanto realize the creditor’s rights should be treated as the exceptional situation,I will discuss it in details in Chapter III.Chapter III focus on the essential of bank debit payment- right of set-off. We should to protect the debit payment in law, but as the particularity of bank credit, the legal quality has not been definite, so it’s easy to be confused to apply the Article 32. The author conduct a research of Tatbestand of set-off, in the basic relationship of bank and client, the importance of bank law safety. Thus our ban debt should be defined as bank set-off right and proved by law.