| With the rapid development of China's economy,a large number of large enterprises with strong economic strength and vigorous development have emerged by relying on the fund supply of the banking industry.However,not all enterprises are as beautiful as the surface,in the rapid capital shuffle of the present,many enterprises on the verge of bankruptcy also escape the fate of being eliminated by the market.With the increasing number of dispute cases of bankruptcy cancellation,the fund raising in the process of rapid development of enterprises and the fund settlement after being applied for bankruptcy have become the key issues.On the one hand,Banks representing the money supply want to recoup as much as possible of the loans they have previously made to companies.On the other hand,on behalf of the interests of the bankrupt creditors,the bankruptcy administrator will look at the early collection of loans from different angles,in order to protect the interests of the bankrupt enterprises and creditors.And our country legislation on bankruptcy revocation since bankruptcy law issued in 2006 has been amended without,at present the law did not produce the verdict of the premise of a series of problems make that clear,in the judicial practice of bankruptcy revocation of dispute in our country there are a series of fuzzy problems,it gave the cognizance of such cases judge a lot of problems.Based on this problem,based on three typical cases as the guide,study bank bankruptcy revocation of dispute lawsuit recover loans behavior in advance,legitimacy,and the applicable law,the nature of early recover loans conflict with bankruptcy revocation and legal priority for the root cause of problems,subjective components can mean a bankruptcy revocation right,thus concluded under the current bankruptcy law framework and relevant enlightenment.This paper consists of three parts:In the first part of this paper,three representative cases are selected: "bankruptcy revocation dispute case of jinmao furniture company manager and anji rural credit cooperative","bankruptcy revocation dispute case of nantong meijiali company bankruptcy revocation dispute case of bank of jiangsu","dispute case of hongqiao holding company manager and zheshang bank revocation dispute case of individual settlement behavior".In the first chapter,the case and the verdict are briefly described,and the differences arising from the case are analyzed and the focus issues are summarized.In the second chapter,three detailed issues in the case of bank's early collection of loans,namely,the validity of the accelerated maturity clause,the nature of the debtor's deposit in the bank under the bankruptcy cancellation dispute,and the legal offset of loan principal and interest by the bank through the deduction of deposits,are studied and drawn a conclusion.The second part mainly analyzes the causes of the conflict between the contract law and the bankruptcy law and the preferential application after the conflict.At the same time,it analyzes the legislative intention of bankruptcy laws at home and abroad,discusses the source of conflicts,and finally discusses the preferential application of legal conflicts based on the practical trial rules of civil and commercial cases.The last part of this chapter analyzes the application of subjective intention as a constitutive element of bankruptcy revocation right outside China and its admissibility in China.Based on legislative and judicial status quo of our country,draw lessons from the United States bankruptcy revocation of the usual trade exception principle,puts forward some pertinent Suggestions,and combined with the present situation and the national conditions in our country,Suggestions to expand Banks bankruptcy revocation of the critical period of bankruptcy case,and the subjective meaning as court cases applicable bankruptcy revocation right factor,in order to better operate in bankruptcy revocation of the dispute applicable,consummates our country bankruptcy revocation system. |
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