A Study Of Bank's Acceleration Clauses And Deduction For Repayment

The acceleration clauses in the loan contract is used as a loan risk management method widely used by the lender in the lending contract.After the borrower enter the bankruptcy procedure,its effectiveness should be recognized by the bankruptcy law and should be in accordance with the bankruptcy cancellation right rule.The revocation of the unpaid credits or the settlement of credits that have expired is a matter of theoretical research and practical knowledge.Therefore,the author used this as the basis of the topic to try to clarify the relevant issues.The first chapter mainly focuses on the review of typical cases concerning expedited expiry clauses,reflecting the effectiveness of bank loans accelerated expiry and the subsequent effect of debit repayment behavior,which has become increasingly prominent,and has led to a greater impact in the judicial practice community.Big controversy.The second chapter elaborates the causes of the expiry of the term of the loan contract,the nature of the theory,the legal basis,and the limitation of effectiveness.Accelerated expiry clauses originate from the risk control of financial institutions for their loans,which is conducive to the maintenance of financial security and has certain rationality.And we can see from the laws and related regulations that our country's law is in principle to recognize the effectiveness of accelerated expiry clauses in bank loan contracts.That is to say,in most cases,the expiry term of mostloan contracts is a formal clause,but if it is the true intention of both parties,as long as their contents do not violate mandatory laws,they are in principle valid.However,accelerating the term of expiry as a form of contractual clause,and whether its own specific acceleration matter content is fair,reasonable,and legal,and whether the expiry of this type of clause is effective is a problem at two different levels.The acceleration of expiry clauses is effective,and it is not excluded that some of the specific contents of accelerating matters may be deemed invalid.The current application of expedited expiry clauses in China is very broad.Therefore,the court should review the legitimacy of the expedited expiry of banks' rights and balance the interests of borrowers and banks and between bank creditors and other creditors.Then,on the basis of the validity of the accelerated expiry of this type clause,the application of the clause in the context of bankruptcy is analyzed.The legislative principle of the bankruptcy law is "equal protection of equal creditor's rights".Declaring the early expiry of the contract based on the expiry of the term of the loan will not destroy the order of the original rights maintained by the bankruptcy law,that is,it will not change the order among the creditors.The relationship does not have the bias that can be revoked in the bankruptcy law.Therefore,accelerating the expiry clause does not violate the basic principle of the bankruptcy law.It is fair and reasonable to recognize its effectiveness in the bankruptcy proceedings.The third chapter analyzes the legal characterization and regulatory issues of bank debt repayment behavior.The determination of the effectiveness of bank deductions and debt repayment involves two levels: First,whether bank claims can be offset with the deposits in corporate accounts,and how to characterize them;second,whether this behavior is revoked as a result of individual repayment.Regarding the first question,although the current laws and regulations of our country have established the principle of deposit protection and the rules for the deduction of deposits by banks,these regulations are still imperfect in the face of complex and practical circumstances.Therefore,when disputes arise between the bank and the borrower,there are no clear standards in the legislation to resolve such disputes.Different countries have different legislative provisions on whether bankscan exercise rights of set-off on deposits in borrower accounts.It is necessary to learn and draw lessons from the legislative experience of various countries and determine it according to China's specific national conditions and actual needs.Consider the actual situation of China's bank account types,distinguish deposits,settlements,and custody of different account types,and at the appropriate time,choose to confirm the bank's legal offset rights or “merger account rights”.Moreover,the most important thing in the design of the system should be to clarify the exceptions that are not allowed to offset.The question of whether bank debt repayment behavior belongs to revocable individual repayment behavior mainly focuses on two dispute points: First,whether the bank knows whether the debtor's bankruptcy crisis can be used as a condition for revocation,that is,the revocation of individual repayment Whether subjective maliciousness constitutes a constitutional element or not;Second,whether the individual repayment behavior includes the "passive" liquidation of deductions.Judging from the perspective of legislation,the judgment basis for whether or not to withdraw individual liquidation behavior does not include subjective factors of the parties,but various objective factors,and because the parties' goodwill or malice is often a subjective factor,it is often difficult to prove the evidence.The criteria for whether discharge should be revoked are,in principle,based on objective results,without considering factors such as motivation,fault or bad faith.Therefore,"I do not know the bankruptcy crisis of the debtor" can not be used as a reason not to cancel bank deductions.As to whether the debtor's “passive” liquidation is a revocable category,the principle of the bankruptcy law is “the equal treatment of the same creditor's rights” to prevent the creditor's or the debtor's “unauthorized action” in the bankruptcy proceedings from harming the interests of other creditors,so whether the debtor takes the initiative or not The repayment or the creditor's initiative to deduct the charge,etc.,as long as these acts can not make the debtor's property gains,or change the order of repayment to the detriment of the interests of other creditors,it should be withdrawn.