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Supreme law: private lending rate of more than 36% part of the invalid!

Time: 2015-08-06         Source: Rong 360 finishing         Author: Han Ping

Summary summary! 20 years, private lending has been applied for 94 years of judicial interpretation and 95 years of general terms of the loan, the gray age of private finance!

Supreme Court judicial interpretation of the official text for the civil loan name;Loan general rule into history! Inter-firm lending is not invalid! On the private lending, no longer have 4 times the upper limit of the expression, to 36% of the upper limit;Private p2p network loan only to provide information intermediaries, do not bear legal responsibilityThe

White Book Folklore:

First, the "private lending" legalized. Before the private borrowing has been a form of financing in the form of private, the official did not provide for its legalization. Now the "Supreme People's Court on the trial of civil lending cases applicable to a number of issues of the law" gives a definition of private lending: your existence is reasonable and legitimate, individuals and businesses can not through banks and other traditional financial institutions to borrow funds. But you are in the identity with the traditional financial institutions are different.

Second, the contract is very important. Before a lot of private borrowing between friends and family, so, we are more casual, do not sign the contract to borrow money, or casually put forward an IOU. Now the highest law to tell you that in the future if you have a dispute, to the court, to court, we accept the court is conditional, that is, you had to sign a formal contract, clear the rights and obligations of both sides of the loan, with The contract court will accept your dispute.

Third, the courts involved in criminal offenses are not admissible. In the private lending, often accompanied by illegal absorption of public deposits, fund-raising fraud, illegal business and other criminal acts, which is not a simple civil lending disputes, and this, the court can not control, while the court will give such cases to Public security or inspection authorities to control. So, everyone in the contract before the contract, the best of the identity of the borrower, the authenticity of the judge, do not find time to find every day, called not to ground.

Fourth, to see whether the contract is valid. Natural borrowing between the natural contract as long as the following points will be effective: 1, in cash, from the borrower to receive loans; 2, bank transfer, online electronic remittance or through the network loan platform and other forms of payment, since the funds arrived The borrower's account; 3, to the notes delivered, since the borrower in accordance with the law to obtain the rights of the bill.

5, P2P platform is not responsible for the argument. If the P2P platform only provides media services, then a problem, the investor and the borrower asked to assume responsibility for the guarantee, the people's court will not support. But the P2P platform expressly stated that it will provide a guarantee, a problem, the lender asked to assume responsibility for the guarantee, the people's court will support. Therefore, investors invest in network loans to see if the platform is responsible, otherwise the interests will be damaged after the rights. More importantly, when you are investing, if the platform is publicly promised on the site or claiming to guarantee your money, remember! Be sure to take screenshots down!

Six, if you are worried about the money you can not do so you can do so In the loan, you first look at the borrower has nothing before the assets, such as the house ah, the car ah, luxury ah, and so on. When you sign a loan contract, at the same time to sign another contract, probably the content is that if the future he is not money, you can take his valuable things to debt, the court is to support you.

7, between enterprises and enterprises do not have to engage in the borrowing of the secret. Before, between enterprises and enterprises to borrow money is not recognized by the law, many companies in order to borrow money is also a way, for example, to the boss of the personal fame to borrow money, engage in some false transactions and other tactics to circumvent the law to complete the loan The Now, the Supreme Law recognized the borrowing between enterprises, but it is also provided that you can not borrow every day, and finally developed into a business do not engage in other production and operation, and specifically engage in lending business, that is not allowed of.

Eight, signed private loan contract to note that these five cases are invalid. 1, Zhang San's credit qualification is good, can be from the bank to low interest rates of money, but Li four credit qualification is poor, from the bank loan is not money, but Li four urgent shortage of money. Then Li four just like Zhang to discuss good, so Zhang three from the bank to borrow money, and then higher than the bank's interest rate to lend four. This behavior is not allowed! 2, A business borrowed money from firm B, then lends money to firm C with higher interest, or A firm borrows money from its own employees and lends money to firm C with higher interest. That does not work! 3, the lender know the borrower's money is used for illegal purposes, but also lent to the borrower, nor allowed!

Nine, lend people malicious prosecution. Obviously you do not have the ability to borrow money, or you forged a loan contract and so on, not only the court will not be adopted, and you have to bear legal responsibility. This is to remind the borrower, do not sue maliciously. Even if you are really cheated, and you do not have strong evidence, then you do not go to fake.

10, civil borrowing in these cases, the borrower can not interest. 1, the contract did not specify how much interest, the borrower can not return. 2, the interest of more than 36%, the borrower can not return. 3, the interest deducted in the principal, the interest can not be considered the principal, for example, Zhang three lend to Li four hundred yuan, which deducted 10 yuan in advance, then Zhang three lend to Lee's principal is 90 yuan The 4, the borrower can also interest in advance, ahead of the words can not be in accordance with the contract to the interest also, according to the actual time of your borrowing to calculate interest. That is to say that the borrower to pay back the money in advance is cost-effective.


original:

The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Loan Cases were promulgated by the Supreme People's Court Judgment Committee at its 1655th meeting on 23 June 2015 and are hereby promulgated and shall enter into force as of September 1, 2015.

Supreme People 's Court

August 6, 2015

Law release [2015] No. 18

Provisions of the Supreme People 's Court on Several Issues Concerning the Application of Law in the Trial of Civil Loan Cases

(Adopted at the 1655th meeting of the Judicial Committee of the Supreme People's Court on June 23, 2015)

For the correct trial of civil borrowing disputes, according to the "General Principles of the Civil Law of the People's Republic of China" "People's Republic of China Property Law" "People's Republic of China Guarantee Law" "People's Republic of China Contract Law" "People's Republic of China Civil Procedure Law" "People's Republic of China Criminal Procedure Law "and other relevant laws, combined with the trial practice, the development of these provisions.

Article 1 The term "private lending" as used in these Provisions refers to the act of financing between natural persons, legal persons and other organizations and between them.

The financial institutions and their branches that are engaged in lending business approved by the financial regulatory authorities shall not apply the provisions arising from the issuance of disputes arising from the relevant financial business such as loans.

Article 2 When the lender sues the people 's court, it shall provide evidence such as the receipts, receipts and IOUs, as well as other evidence that can prove the legal relationship between the borrowing and lending.

If the creditor 's creditor' s creditor 's creditor' s creditor 's creditor' s creditor 's creditor' s creditor 's creditor' The defendant on the plaintiff's creditors to make a factual basis for the defense, the people's court that the plaintiff did not have the qualifications of creditors, the ruling dismissed the prosecution.

Article 3 Where the parties to the loan have not agreed or agreed that the contractual performance is not clear and no supplementary agreement has been reached afterwards, the party in which the currency is accepted shall be the place where the contract is performed in accordance with the relevant provisions of the contract or the trade custom.

Article 4 Where the guarantor provides joint and several liability for the borrower, the lender may only sue the borrower, the people 's court may not make the guarantor as a common defendant; if the lender only sues the guarantor, the people' s court may add the borrower to the common defendant.

Where the guarantor provides the general guarantee to the borrower, the lender shall only sue the guarantor, the people 's court shall add the borrower to the common defendant; if the lender only sues the borrower, the people' s court may not make the guarantor as a common defendant.

Article 5 After the people 's court has filed a case and found that the private lending act itself is suspected of committing an illegal fund - raising crime, it shall decide to dismiss the prosecution and transfer the clues and materials suspected of illegal fund - raising crimes to the public security or procuratorial organs.

The public security or the procuratorial organ shall not file a case, or after the investigation of the case, or if the procuratorial organ makes a decision on non-prosecution or the judgment of the people's court does not constitute an illegal fund-raising crime, the parties shall bring a lawsuit to the people's court with the same facts. Should be accepted.

Article 6 The people's court shall continue to hear cases of civil borrowing disputes when the people's court has found clues and materials such as the crime of illegal fund-raising, which is related to the case of civil borrowing disputes, but not the same facts, and will be suspected of illegal fund-raising and other crimes Of the clues, materials transferred to the public security or prosecution.

Article 7 The basic facts of a private loan must be based on the outcome of a criminal case and the criminal case has not yet been concluded. The people's court shall decide to suspend the proceedings.

Article 8 Where the borrower is found guilty of a crime or a judgment in force, the lender shall sue the guarantor for civil liability, and the people 's court shall accept the case.

Article 9 Any of the following circumstances may be considered as having the entry into force of Article 21 of the Contract Law on the Loan Contract between Natural Persons:

(A) paid in cash, when the borrower receives the loan;

(B) to the bank transfer, online electronic remittance or through the network loan platform and other forms of payment, since the funds arrived at the borrower account;

(3) When the bill is delivered by the borrower in accordance with the law;

(4) Where the lender lends the domination of a specific capital account to the borrower, the borrower obtains the actual domination of the account;

(5) When the lender provides the borrower in other ways as agreed with the borrower and the actual performance is completed.

Article 10 In addition to the loan contract between natural persons, the parties claim that the civil loan contract shall be supported by the people's court when the contract is established, unless otherwise agreed by the parties or otherwise provided by laws and administrative regulations.

Article 11 In addition to the circumstances stipulated in Article 52 of the Contract Law and the provisions of Article 14 of these Provisions, the parties shall, in addition to the circumstances stipulated in Article 14 of these Provisions, The people 's court should support the civil loan contract.

Article 12 A legal person or any other organization shall raise funds for employees in the form of borrowing within the unit for the production and operation of the unit, and there shall be no Article 52 of the Contract Law, the circumstances stipulated in Article 14 of these Provisions, the parties The people 's court should support the civil loan contract.

Article 13 Where a borrower or a lender's borrowing act is suspected of committing a crime or has entered into force, it shall constitute a crime, and if the party concerned initiates a civil action, the private loan contract shall not be invalid. The people's court shall, in accordance with Article 52 of the Contract Law and Article 14 of these Provisions, determine the validity of the civil loan contract.

If the guarantor does not bear civil liability on the grounds that the borrower or the lender 's borrowing behavior is suspected of committing a crime or has entered into force, the people' s court shall, according to the validity of the civil loan contract and the guarantee contract, the degree of the fault of the party concerned, Determine the civil liability of the guarantor.

Article 14 In any of the following circumstances, the people's court shall determine that the civil loan contract is invalid:

(A) to take financial institutions, credit funds and high profits to the borrower, and the borrower in advance to know or should know;

(2) to borrow money from other enterprises or raise funds from the employees of the unit and lend them to the borrower for profit and the borrower knows or should know in advance;

(3) the lender has previously known or should know that the borrower's borrowing is still used for criminal activities to provide loans;

(4) contrary to the public order of good and bad;

(5) other violation of laws and administrative regulations of the mandatory mandatory provisions.

Article 15 The plaintiff shall bring a civil borrowing litigation on the basis of the creditor's rights certificate such as the receipt, receipt and IOU, and the defendant shall file a defense or counterclaim according to the basic legal relationship and provide evidence to prove that the dispute has been caused by the non-governmental lending act. The facts of the case, according to the basic legal relationship.

The parties shall not apply the provisions of the preceding paragraph through mediation, settlement or liquidation of the creditor 's rights and debts reached.

Article 16 The plaintiff shall initiate a civil loan litigation only on the basis of the creditor's rights, such as the receipt, the receipt and the IOU, and the defendant shall repay the loan, and the defendant shall provide proof of his claim. The plaintiff should bear the burden of proof of the establishment of the loan relationship after the defendant has provided the evidence to prove his claim.

The defendant's defense of the borrowing behavior has not yet occurred and can make a reasonable statement, the people's court should be combined with the amount of borrowing, payment of funds, the economic capacity of the parties, local or the transaction between the parties, trading habits, property changes in the parties and witness testimony and other facts and Factors, a comprehensive judgment to verify whether the occurrence of borrowing facts.

Article 17 The plaintiff shall initiate a civil loan litigation only on the basis of the transfer vouchers of the financial institution, and the defendant shall defend the debts or other debts or other debts, and the defendant shall provide proof of his claim. The plaintiff should bear the burden of proof of the establishment of the loan relationship after the defendant has provided the evidence to prove his claim.

Article 18 In accordance with the provisions of Paragraph 2 of Article 174 of the Interpretation of the Civil Procedure Law of the People's Republic of China, the plaintiff who has the burden of proof shall refrain from appearing without court There is evidence that can not confirm the borrowing behavior, the amount of loans, payment methods and other major facts of the case, the people's court of its claims that the facts are not identified.

Article 19 The people's court shall, when it is found that the case has been investigated in the case of civil borrowing disputes, it shall strictly examine the reasons such as the reasons, time, place, source of money, mode of delivery, the flow of money and the relationship between the borrower and the economic situation Whether it is a false civil action:

(A) the lender obviously does not have the ability to lend;

(B) the facts and reasons on which the lender commits the prosecution are clearly inconsistent with the common sense;

(C) the lender can not submit the creditor's rights certificate or the creditor's right voucher exists forged;

(4) the parties have participated in civil borrowing litigation for a certain period of time;

(5) If one or both parties refuses to attend the court without a proper reason, the entrusting agent is confused about the facts of the loan or the contradiction before and after the statement;

(6) the parties to the parties to the occurrence of the fact that there is no dispute or elution is clearly not consistent with common sense;

(7) the spouse or partner of the borrower and the other creditors of the offender who have objections to the facts;

(8) the circumstances in which the parties have a low transfer of property in other disputes;

(9) the parties have improperly waived their rights;

(10) other possible cases of false civil borrowing litigation.

Article 20 Where the plaintiff applies for withdrawal from a false civil borrowing lawsuit, the people 's court shall not grant permission and shall, in accordance with the provisions of Article 112 of the Civil Procedure Law, decide to reject the request.

Litigation participants or others malicious manufacture and participation in false litigation, the people 's court shall, in accordance with the provisions of Article 111, Article 112 and Article 113 of the Civil Procedure Law, impose a fine according to law, If a crime is constituted, the judicial organ with jurisdiction shall be transferred to criminal responsibility.

If a unit engages in a false action, the people 's court shall impose a fine on the unit and may impose a fine or detain on its principal responsible person or directly responsible person. If the case constitutes a crime, the judicial organ with jurisdiction shall be transferred to criminal responsibility.

Article 21 A person who has signed or sealed a creditor's certificate or a loan contract, such as the receipt, receipt, or of the debt, does not indicate the identity of the guarantor or assume the guaranty liability, or can not presume that it is the guarantor through the other facts. If the guaranty is held, the people 's court shall not support it.

Article 22 Where the borrower forms a loan relationship through the network loan platform, the provider of the network loan platform only provides the media service, and the people 's court shall not support the party' s request for the guarantee responsibility.

If the provider of the network loan platform expresses the guarantee by the website, advertisement or other media, or if there is any other evidence to prove that the loan is provided by the lender to the provider of the network loan platform, the people 's court shall support it.

Article 23 Where a legal representative or person in charge of an enterprise signs a private loan contract with the lender in the name of the enterprise, the lender, the enterprise or its shareholders can prove that the borrowed item is used for the legal representative or person in charge of the enterprise, Where a legal representative or person in charge is a common defendant or a third party, the people's court shall grant permission.

Where a legal representative or person in charge of an enterprise signs a civil loan contract with the lender in the name of an individual, the borrowed amount is used for the production and operation of the enterprise. If the lender requests the joint responsibility of the enterprise and the individual, the people's court shall support it.

Article 24 Where a party enters into a contract of sale as a guarantee for a civil loan contract and the borrower fails to repay the loan after the expiration of the loan, the lender shall perform the contract of sale and purchase, and the people 's court shall hear the matter in accordance with the legal relationship of the civil loan and explain to the parties Change the claim. If the parties refuse to change, the people 's court ruled that the prosecution was dismissed.

The borrower may apply for the auction of the subject matter of the sale and purchase contract in order to repay the debts after the borrower fails to perform the monetary obligations determined by the effective judgment after the judgment made by the civil loan legal relationship takes effect. The borrower or lender has the right to claim a return or compensation for the difference between the price of the auction and the repayment of the principal and interest of the loan.

Article 25 Where the borrower does not agree on the interest and the lender claims to pay interest within the borrow period, the people 's court shall not support it.

If the borrower lends interest on interest, the people 's court shall not support it. In addition to borrowing between natural persons, the borrower and the borrower both agree on the interest on the loan, the lender claims interest, the people's court should be combined with the contents of civil lending contracts, and according to local or party transactions, trading habits, market interest rates and other factors to determine interest

Article 26 Where the interest rate agreed upon by both parties is not more than 24% of the annual interest rate, the lender shall request the borrower to pay interest at the agreed rate.

The interest rate agreed upon by both parties is more than 36% of the annual interest rate, and more than part of the interest agreement is invalid. Where the borrower requests the lender to return the interest paid in excess of 36% of the annual interest rate, the people 's court shall support it.

Article 27 The amount of the borrowings stated in the creditor's rights vouchers such as the receipts, receipts and IOUs shall be generally recognized as principal. If the interest is deducted in advance, the people 's court shall determine the amount of the actual loan as principal.

Article 28 After the settlement of the principal and interest of the borrower by the borrower, the interest shall be credited to the principal of the subsequent loan and the creditor's certificate shall be re-issued. If the previous interest rate does not exceed the annual interest rate of 24%, the amount of the creditor's certificate shall be deemed to be late The principal amount of the borrowing; the excess interest can not be included in the principal amount of the late loan. If the agreed interest rate exceeds the annual interest rate of 24%, the parties claim that more than part of the interest can not be included in the late borrowing principal, the people 's court shall support it.

The sum of the principal and interest payable by the Borrower after the expiry of the borrowing period shall not exceed the sum of the initial borrowing principal and the interest of the entire borrowing period calculated on the basis of the initial borrowing principal and the annual interest rate of 24%. Where the lender requests the borrower to pay more than part, the people 's court shall not support it.

Article 29 Where the borrower has agreed upon the overdue interest rate, it shall be bound by its agreement, but not more than 24% of the annual interest rate.

Where the overdue interest rate is not agreed or the agreement is unknown, the people's court may distinguish between different situations:

(1) The interest rate shall not be agreed upon by the borrower, nor shall the borrower claim that the borrower shall pay the interest of the capital during the period of overdue repayment by 6% of the annual interest rate. The people's court shall support it;

(2) The interest rate shall be supported by the people's court if the borrower claims that the borrower pays the interest during the period of the borrowing period from the date of the overdue repayment.

Article 30 The lender and the borrower agree not only the overdue interest rate, but also stipulates the liquidated damages or other expenses. The lender may choose to claim overdue interest, liquidated damages or other expenses, or may claim together, but the total annual interest rate is 24 % Of the part of the people's court does not support.

Article 31 Where no interest is agreed but the borrower voluntarily pays, or exceeds the agreed interest rate voluntarily pays interest or liquidated damages and does not harm the interests of the state, collective and third parties, the borrower shall, on the basis of unjust enrichment, Return, the people's court does not support, but the borrower's request to return more than 36% of the annual interest rate interest except.

Article 32 The borrower may repay the loan in advance, unless otherwise agreed by the parties.

Where the borrower repays the loan in advance and claims that the interest is calculated according to the actual borrowing period, the people 's court shall support it.

Article 33 After the promulgation and implementation of these Provisions, the Supreme People's Court promulgated the Opinions on the People's Courts' Trial of Borrowing Cases issued on August 13, 1991 at the same time. The judicial interpretation issued by the Supreme People's Court was inconsistent with these Provisions , No longer applicable.

Attached to the Supreme Court of the special committee Du Wanhua on the "provisions" of the ten highlights of the authority of interpretation

(A) on the definition of private lending. This part mainly stipulates the scope of application of the judicial interpretation of private lending, and defines the private lending behavior and the subject scope. Private lending is a kind of folk financing credit form which is spontaneously formed in the process of social and economic development. It has a long history and deep tradition in our country and is widely familiar with the society. The term "folklore" has been conventionally The In China, the lending market is mainly composed of financial institutions lending and private lending. The judicial interpretation solves the controversy between natural persons, legal persons and other organizations due to financial intermediation. Explain the first paragraph of the first paragraph is clear "The provisions of the civil borrowing referred to here, refers to natural persons, legal persons, between other organizations and their mutual financing between the behavior." This definition reflects the nature of private lending behavior And the subject area. From the form of the title to clarify the difference with the national financial regulatory agencies, but also from the scope of the main application of the borrower with the financial institutions to distinguish.

(2) The acceptance and jurisdiction of cases of private lending. From the reality of private lending, private lending funds are mostly private or idle funds, with loose, extensive features. As a result of the relationship between the borrower relationship between the two parties have relatives or colleagues, fellow, students and other social relations in the form of borrowing often show simple and arbitrary. It is more common to issue a written loan contract or simply by the borrower to issue a simple basis, receipt or IOU. In the event of a dispute, it is often difficult for both sides to lend sufficient evidence to prove their claim or defense. At this point, the people's court should accept such cases in judicial practice is controversial. This part of the judicial interpretation mainly stipulates the conditions for the prosecution of the civil loan cases, the determination of the performance of the civil loan contract and the status of the guarantor's litigation, and provide the judicial administration to the admissibility and jurisdiction of the private loan dispute in the context of the filing registration system The legal basis.

(C) of the civil loan cases involving civil cases and criminal cases cross the provisions. With the continuous development of market economy, the social relations of law adjustment are becoming more and more complicated. In cases of civil borrowing disputes, such cases are often intertwined with cases such as illegal absorption of public deposits, fund raising frauds, illegal business operations, arising from the same legal facts or crossed two legal facts, to some extent intertwined Criminal cases and civil cases, that is, civil tort cases. The interdisciplinary problem mainly includes two aspects: the coordination of the criminal procedure and the determination of the entity responsibility. This part mainly includes: 1. In case of private lending cases suspected of illegal fund raising, the people's court shall not accept or dismiss the prosecution and transfer the clues and materials suspected of illegal fund raising to the public security or procuratorial organs. This provision is conducive to the prosecution of the three organs in the fight against and deal with stakeholder illegal fund-raising crime can be better coordinated and co-ordinated. 2. The people 's court shall transfer the criminal cues to the investigating organ, but the civil loan cases shall continue to be heard if the case is related to the case of civil borrowing but not the same fact. If the borrower sues the guarantor for civil liability, the people 's court shall accept the case where the borrower finds that he is guilty of an offense such as illegal fund - raising or that he is convicted.

(D) on the effectiveness of civil lending contracts. The judgment of the effectiveness of civil loan contracts has important significance in judicial practice. Only on the basis of an effective civil loan contract, a party can claim to the other party in accordance with the contract to fulfill their obligations, but also related to the commitment to breach of contract and the termination of the contract and other issues. In view of the particularity of the civil loan contract, the judicial interpretation in this part mainly stipulates the following: The entry into force of the private loan contract between natural persons; In order to produce and operate a private loan contract between enterprises and enterprises, the validity of the civil loan contract shall be determined as long as it does not violate the provisions of Article 52 of the Contract Law and Article 14 of the judicial interpretation. This is also the most important clause of the judicial interpretation One; 4. The enterprise is valid for the private loan contract signed by the enterprise through the form of borrowing within the unit due to the production and operation. The borrower or the borrower's borrowing behavior is suspected of committing a crime, or the judgment of the entry into force constitutes a crime, the private loan contract is not invalid, but shall be determined according to Article 52 of the Contract Law and the provisions of Article 14 of the judicial interpretation of the civil loan contract Effectiveness.

(5) the responsibility for the Internet lending platform. In recent years, with the development of the Internet and related technologies, Internet finance in China has been rapid development. Since 1979, the concept of p2p, and micro-credit and Internet technology has been connected, p2p network borrowing gradually entered the people's vision, and in 2007 formally entered our country. Since 2013, p2p network lending has developed a blowout that has grown from a few dozen to several thousand in a year, not only to achieve quantitative growth, but also to expand the type and manner of borrowing. China has formed a new feature with the foreign p2p loan loan model, but also produced a complex role of the platform, the main body of the lack of supervision, the lack of credit systems and other new issues, in the current p2p network lending platform for the lack of legal norms , In order to better protect the legitimate rights and interests of the parties to further promote the development of China's small network of small loans to the capital market, the "provisions" for p2p intercourse and guarantee the two legal relations, whether and how to bear civil liability The In accordance with the provisions of the "provisions", the borrower through the p2p network loan platform to form a loan relationship, the network loan platform providers only provide media services, does not assume the guarantee responsibility, if the p2p network loan provider through the web, advertising or Other media express or have other evidence to prove that they provide security for the loan, according to the lender's request, the people's court can determine the p2p network loan platform provider to assume responsibility for the guarantee.

(6) Determination of the mixed situation between the civil loan contract and the sale and purchase contract. In the practice of private lending, there is a phenomenon in which the parties concerned are unable to pay the principal and interest of the debtor in order to avoid the debtor's inability to repay the loan, often at the same time as the signing of the civil loan contract or after the signing of the contract of sale (mainly for the sale and purchase contract) , The performance of the sale of the contract. How to determine the nature and effectiveness of the contract in such cases, how to deal with it, related to the reunification of the people's court, related to the maintenance of the vital interests of the parties. At the same time, the correct handling of such cases, for the prevention of false litigation, improve the security norms, promote the healthy development of the economy are of great significance. The judicial interpretation clearly stipulates that the parties through the signing of the contract as a civil loan contract guarantee, the borrower can not repay the loan after the expiration of the borrower, the lender to fulfill the contract of sale, the people 's court should be in accordance with the legal relationship between civil borrowing. The borrower may apply for the auction of the subject matter of the sale and purchase contract in order to repay the debts after the borrower fails to perform the monetary obligations determined by the effective judgment after the judgment made by the civil loan legal relationship takes effect.

(7) on the effectiveness of inter-firm lending. In 1991, the "Opinions on the People 's Courts' Trial of Borrowing Cases" was limited to at least one party being a citizen (natural person), and for the borrowing between enterprises and enterprises, according to the " General rule "and the relevant judicial interpretation of the provisions of our hospital, generally in violation of national financial supervision was identified as invalid. This system of regulations in the judiciary has been long-term compliance, to some extent for the maintenance of financial order, to prevent financial risks, played an important role. However, the system from the planned economy era continued not only did not eliminate the occurrence of inter-firm lending behavior, on the contrary, even between the enterprises even more intense momentum. In reality, there is a huge demand for borrowing between enterprises, which leads to a series of indirect lending modes of operation between enterprises. Especially in recent years, with the continuous development of China's socialist market economy, many enterprises, especially small and medium-sized micro-enterprises in the course of business there is a shortage of working capital, financing channels sluggish development bottlenecks, enterprises through private lending or mutual borrowing funds Become an important channel for financing. However, in order to avoid the ineffective provision of funds between enterprises, many enterprises through false transactions, the name of the joint venture, corporate executives in the name of personal borrowing and other ways of private financing, resulting in a substantial increase in corporate risk, private lending market order is damaged.

"Time shift is easy". According to the current situation, we have found that the private lending between enterprises should be given a conditional recognition. The judicial interpretation of this provision: enterprises in order to produce and operate the need to borrow funds from each other, the judiciary should be protected. This provision is not only conducive to maintaining the autonomy of enterprises to protect corporate personality integrity, but also help to ease the enterprise "financing difficulties" and "financing expensive" and other ills to meet the needs of their own business operations; not only conducive to regulate the private lending market Operation, and promote the steady development of the national economy, but also conducive to reunification of referee standards, standardize the civil trial standards.

Of course, allowing the financing between enterprises, does not mean that the borrowing between enterprises can be left alone, laissez-faire. It should be said that the lifting of the ban is not fully liberalized, we believe that the normal inter-enterprise lending is generally to solve the financial difficulties or production in urgent need of, but can not be normal, often industry. As a production and operation of enterprises, if the regular lending as the main business, or as its main source of income, it may lead to the nature of the enterprise variation, quality has not been approved by the financial regulatory authorities engaged in specialized lending business financial institutions. Production and operation of enterprises engaged in regular lending business, will seriously disrupt the financial order, resulting in financial regulatory disorder. This behavior objectively harm the social and public interests, must be made from the effectiveness of negative evaluation. To this end, the "provisions" specifically for inter-enterprise borrowing should be invalidated in other circumstances to make specific provisions.

(8) Provisions on the nullity of civil loan contracts. The determination of the invalid contract, the maintenance of the validity of the contract and the safety and stability of the order of the market operation are also related to the protection of the social public interest. It is helpful to regulate the financial order of our country in the judicial interpretation, and to guide the healthy and orderly development of the private loan. It also provides the normative basis for the accurate verification of the invalid civil loan contract for the trial practice. This provision specifies the circumstances in which a civil loan contract should be considered invalid, including: 1. Take the financial institutions and credit funds and loan to the borrower, and the borrower in advance to know or should know; To borrow money from other enterprises or to the staff of the unit to raise funds and loan to the borrower profit, and the borrower in advance to know or should know; The borrower knows in advance or should know that the borrower borrows for the criminal activities still provide loans; Contrary to the social order of good and bad; Other violations of laws and administrative regulations of the mandatory mandatory provisions.

(9) on the handling of false civil litigation. We have found that there are many false litigation in the field of civil trials, especially in civil lending cases. How to effectively curb the false litigation in the civil loan dispute is a prominent problem in the trial practice, and it is also a problem to be solved urgently. The interests of such cases are complex, and often the interests of the real rights can not be guaranteed, once the court failed to identify false litigation, support the interests of the parties to the false litigation, not only can not resolve the dispute, but more intensified the contradictions between the parties , Easily lead to and intensify social conflicts. In short, the false civil borrowing litigation violates the interests of the real rights and wastes the limited judicial resources; it disrupts the normal order of the judicial trial and affects the social stability. Therefore, it is necessary to increase the prevention and combat of false litigation in order to maintain an honest and trustworthy litigation environment. How to identify false litigation in trial practice is the primary problem in curbing false litigation. For this problem, people's courts at all levels in the judicial practice in the process of forming a different approach, but also reached a basic consensus that the process should be in the civil loan case to strengthen the review of evidence. This "Regulations" combines the results of the practice of false civil borrowing litigation practice, absorbs the beneficial experience and practice in practice, adopts the normative model of comprehensive judgment, and sums up the ten categories that may be classified as false civil borrowing litigation Behavior, such as the lender is clearly not the ability to lend; the lender to prosecute the facts and reasons are clearly not in line with the common sense; the lender can not submit the creditor's rights certificate or the existence of counterfeit creditors exist forged, and so on, for trial officers to hear the case Reference, reference. Of course, the correct identification of false civil borrowing litigation, but also requires the trial staff based on the accumulation of their own trial experience, the improvement of the cognitive ability of life, combined with the reasons for the loan, time, place, source, delivery, money flow and lending The relationship between the two sides, the economic situation and other facts, a comprehensive judgment whether it is a false civil action.

The people 's court shall, in addition to the request for dismissal of the plaintiff, shall, in strict accordance with the contents of these Provisions, impose a fine or detain the litigation participant in the case of malicious manufacture or participation in the false litigation; Must be transferred to the jurisdiction of the judiciary to pursue criminal responsibility.

(10) Interest rates and interest on private lending. The regulation of interest rate is the core issue of private lending, and it is also one of the important contents of this judicial interpretation. The Third Plenary Session of the Eighth Central Committee of the Party has identified the financial market reform, one of the most important aspects is the marketization of interest rates. However, interest rate marketization does not mean that interest rates are infinite, but do not mean that interest rates are out of order. It is necessary to control the ceiling of private lending rates. The control of private lending rates, in addition to taking into account the convenience of government and financial regulatory authorities, but also consider the market as the main needs of both sides of the borrower. China's formal financial market lending rate is in a period of change, experienced from the national unified lending rate, according to the national benchmark interest rate upper and lower floating rate, and then in 2004 to cancel the lending rate floating ceiling, 2013 to cancel the floating lower limit of the process of change The In China's judicial practice, the general use of the central bank announced the benchmark lending rate as the referee in the "bank similar loan interest rates." With the advancement of China's interest rate marketization reform process, it is imperative to change the judicial policy of four times the benchmark loan interest rate as the upper limit of interest rate protection. How to adjust the number of private lending rates, adopt the model, how to determine the fixed rate ceiling standards, this series of trial practice problems need to answer. "Provisions" on the civil borrowing interest rates and interest mainly include: 1. The borrower does not have the right to claim the interest on the borrower, or the borrower has no right to claim the interest of the borrower; The interest rate of the borrower is not more than 24% of the annual interest rate. The lender has the right to request the borrower to pay interest at the agreed interest rate. However, if the interest rate agreed upon by the borrower is more than 36% of the annual interest rate, the interest exceeding 36% of the annual interest rate shall be The borrower has the right to request the lender to return the interest that has been paid in excess of the annual interest rate of 36%; Where the interest is deducted in advance in the principal, the people 's court shall be deemed to be the principal in accordance with the actual amount of the loan; Unless otherwise agreed by the borrower, the borrower may repay the loan in advance and calculate the interest in accordance with the actual borrowing period. In addition, this part also provides for overdue interest rates, voluntary interest payments and compound interest.

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