破产法视野中的银行贷款加速到期与扣款抵债问题

A Study of Acceleration Clauses and Deduction for Repayment from the Perspective of Bankruptcy Law

加速到期作为普遍运用于商业贷款中的条款,有其存在的必要性与正当性。在破产程序中,加速到期后债务清偿行为应否撤销,首先应关注合同文本中的加速到期适用情形并进行类型化分析,然后对银行启动加速到期条款的行为进行正当性审查。加速到期附加扣款抵债,在国外也是普遍存在的现象,但从贷款人与借款人的利益平衡和企业融资的大环境判断,加速到期条款虽为合同约定内容,依然要遵循公平原则,避免因加速到期条款的滥用造成债务人过重的财务风险,进而引发不必要的破产现象。如果加速到期条款被滥用,法院应以认定加速到期行为无效进而按照"对未到期的债务提前清偿"而撤销"扣款抵债"行为,谨慎适用"危机期间的个别清偿"的可撤销条款,以维护金融安全和金融秩序的稳定,确保破产撤销权的行使符合企业破产立法的本意。

As a clause commonly used in commercial loans, the acceleration clauses has its necessity and legitimacy. In the process of bankruptcy, when considering the problem whether the repayment should be revoked after the expiration of the accelerated period, it is primary to focus on the applications of the acceleration clauses in the contract and analyzes them typologically. Moreover, the legitimacy of the bank＇s act to trigger the acceleration clauses should be reviewed. The acceleration clause, as well as the deduction for repayment, is also widespread abroad. However, though the acceleration clauses may be a part of the contract, it is significant to follow the principle of equity to conserve the interest balance between lenders and borrowers, and the environment for enterprise financing. Therefore, the abuse of the acceleration clauses, which may increase the debtor＇s financial risk and lead to unnecessary bankruptcy, should be avoided. Once the acceleration clauses are abused, the court shall invalidate the act and revoke the ＂deduction for repayment＂ in accordance with the clause ＂early settlement of unexpired liabilities＂. For maintaining the stability of financial security and financial order, and ensuring that the exercise of bankruptcy revocation rights in line with the intention of bankruptcy legislation, the revocable clause ＂individual settlements during the crisis＂ should be applied with great caution.