Research On The Acceleration Clause In Bankruptcy

With the rapid development of the financial market,the scale of the lending business of financial institutions such as banks has gradually expanded.In order to prevent risks and ensure loan security,it is increasingly common practice to include acceleration clauses in lending contracts.Based on the principle of freedom of contract,the parties are free to agree the content of the acceleration clause.However,in bankruptcy proceedings,the bank based on the expiration of the terms of the acceleration achieved by way of deduction of advance deposit account debtor creditor,whether belonging to the "Bankruptcy Law" prohibited to pay in advance,individual repayment ? Therefore,the application of this clause creates greater controversy in the bankruptcy proceedings.In the current situation of theoretical research and judicial practice,no consensus has been reached on the nature and effectiveness of acceleration clauses,therefore,in practice due to the acceleration clause applies has created some controversy.By the analyzing typical cases concerning the effectiveness of acceleration clauses in bankruptcy proceedings in recent years,and proposes relevant issues for accelerating the validity of expiry clauses in current bankruptcy proceedings.Based on related issues,this paper analyzes the relevant theories of the contract law and the bankruptcy law,and puts forward some ideas and suggestions for the validity determination of bank acceleration clauses in the bankruptcy proceedings,with a view to benefiting the study of acceleration clauses.The first part is on raising the question.First,analyzing the case of the effectiveness of acceleration clauses in four insolvency proceedings,namely Nantong Mejiali and Jiangsu Guanyinshan Sub-branch,Sanlu Group and Shijiazhuang Qiaoxi Sub-branch.Further,it is proposed that currently in the bankruptcy proceedings,the following three issues are identified for accelerating the effectiveness of the clause.First,the nature of acceleration clauses is not the same.Second,the acceleration of the scope of application is too broad.Third,for the bankruptcy proceedings,the effectiveness of the bank's deduction of deposits from the debtor's account due to acceleration clause has not yet been established.The second part is on analyzing the nature of acceleration clause.First of all,the article analyzes the current academic opinion on the nature of acceleration clause.Then,from a legislative perspective and a theoretical perspective,this article argues that the acceleration clause is actually a separate liability for breach of contract.The third part is on demonstrates the acceleration clause of bank loan contracts.First,we list the applicable reasons for acceleration clause in current bank loan contracts.In response to the current situation of acceleration clauses of abuse the author analyzes the reasonable scope for acceleration clause.The fourth part is on discussing the validity criteria of bank deductions in bankruptcy proceedings.First of all,from the perspective of bankruptcy law,the bank's standard for deducting payment behaviors is analyzed.Then,based on the perspective of comparative law,the effectiveness verification standards are compared and analyzed in relation to foreign relevant legislation.Finally,the author proposes that the criteria for determining the validity of bank deductions in the expiry clause should use the combination of objective criteria and subjective standards.