Information > General article > Raiders channel > Essential recommendation >  text

Supreme Law: Private lending rates over 36% are partially invalid!

Time: 2015-08-07         Source: Rong 360 finishing         Author: Han Ping

Brief summary! In the past 20 years, private lending has been applied for 94 years of judicial interpretation and 95 years of loan general rules, against the gray era of private finance!

The Supreme Court’s judicial interpretation officially issued a letter for the private loan;The general rule of loans goes into history! Inter-enterprise lending is not always valid! For private lending, there is no longer a four-fold upper limit, and the upper limit of 36% is;Private p2p online lending only provides information intermediary, does not bear legal responsibility.

Vernacular version of private lending:

First, "private lending" has been legalized. Previously, private lending has always been a form of financing credit that exists in the private sector. The official has not regulated its legalization. Now the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases" gives a definition of private lending: your existence is reasonable and legal, and individuals and businesses can borrow money from traditional financial institutions such as banks. But you are different in identity from traditional financial institutions.

Second, signing a contract is very important. Before the private lending was carried out between relatives and friends, so everyone is more casual, borrowing money does not sign a contract, or just make a loan. Now the Supreme Law tells you that if you have a dispute in the future, you have to go to court, you have to go to court, and our courts are subject to conditions. That is, you must sign a formal contract at the time to clarify the rights and obligations of both parties. The contract court will accept your dispute.

3. The court involved in criminal offences will not accept it. In private lending, it is often accompanied by illegal absorption of public deposits, fund-raising fraud, illegal business operations, etc. This is no longer a simple private lending dispute. In this case, the court can’t control it, and the court will hand over such cases to Public security or inspection agencies come to control. Therefore, before signing a contract, it is best to judge the identity and authenticity of the borrower. When you don’t find it, you should not find it every day.

Fourth, we must see if the contract is valid. The loan contract between natural persons can take effect as long as the following points are involved: 1. In cash, when the borrower receives the loan; 2. In the form of bank transfer, online electronic remittance or online loan platform, the funds arrive. When the borrower's account is used; 3. When the bill is delivered, the borrower obtains the right to the bill according to law.

5. There is a saying that the P2P platform is not responsible. If the P2P platform only provides media services, then after the problem occurs, the investor and the borrower demand that they assume the guarantee responsibility, and the people's court will not support it. However, the P2P platform clearly stated that it will provide guarantees. If the lender asks for the guarantee responsibility after the problem occurs, the people's court will support it. Therefore, when investors invest in online lending, they must see whether the platform is responsible or not. More importantly, when you invest, if the platform publicly promises on the website or declares your money to provide a principal and interest guarantee, remember! Be sure to take a screenshot!

6. If you are worried that the person who borrowed your money will not be able to do so. When borrowing, you should first check whether the borrower has the assets before, such as the house, the car, the luxury goods, and so on. When you sign the loan contract, you can sign another contract at the same time. The content is that if he can't get the money in the future, you can take his valuable things to pay the debts. The court also supports you.

Seven, the loan between the enterprise and the enterprise does not have to be sneaky. Before, the mutual borrowing of money between enterprises and enterprises was not recognized by the law. Many companies also tried their best to borrow money, for example, borrowing money from the personal reputation of the company’s bosses, engaging in some false transactions and other tactics to avoid the law. . Now, the Supreme Law recognizes the behavior of borrowing between enterprises, but there are also provisions, that is, you can not borrow every day, and finally develop into a business that does not engage in other production and operation, specializing in lending business, then this is not allowed. of.

8. It is necessary to pay attention to the signing of private lending contracts. These five situations are invalid. 1. Zhang San’s credit qualification is good, and he can borrow money from banks to low interest rates. However, Li Si’s credit quality is poor, and he can’t get money from the bank, but Li Si is short of money. Then Li Si discussed with Zhang San, let Zhang Sanqian borrow money from the bank, and then lend it to Li Si at a rate higher than the bank. This behavior is not allowed! 2. The A company borrows money from the B company and then lends it to the C company with higher interest, or the A company borrows money from its own employees and then lends it to the C company with higher interest. This is not the case! 3. The lender clearly knows that the borrower’s money is for illegal use, but it is also not allowed to lend to the borrower!

Nine, lenders do not maliciously sue. Obviously, you have no ability to borrow money, or you have forged a loan contract, etc., not only the court does not accept, but you also have legal responsibility. This is to remind the borrower not to maliciously sue. Even if you are really cheated, and you have no strong evidence, then you should not make a fake.

10. In these cases of private lending, the borrower may not pay interest. 1. If there is no interest in the contract, the borrower may not return it. 2. If the interest exceeds 36%, the borrower may not return. 3. If the interest is deducted from the principal, the interest cannot be calculated as the principal. For example, Zhang San lends Li Si 100 yuan, of which 10 yuan is deducted in advance, then the principal of Zhang San’s loan to Li Si is 90 yuan. . 4. The borrower can repay the interest in advance. If it is returned in advance, it can be returned without the interest agreed in the contract. The interest is calculated based on the actual time of your loan. In other words, it is cost-effective for the borrower to pay back the money in advance.


original:

The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases was adopted by the Supreme People's Court Judicial Committee at its 1655th meeting on June 23, 2015. It is hereby promulgated and will come into force on September 1, 2015.

Supreme people's court

August 6, 2015

Law Interpretation [2015] No. 18

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

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

In order to properly handle cases of private lending disputes, according to the "General Principles of the Civil Law of the People's Republic of China", "Property Law of the People's Republic of China", "Guarantee Law of the People's Republic of China", "Contract Law of the People's Republic of China" These regulations are formulated in conjunction with the practice of the law, such as the Law.

Article 1 The term “private lending” as used in these Provisions refers to the behavior of financial transactions between natural persons, legal persons and other organizations.

These regulations are not applicable to financial institutions engaged in loan business approved by the financial regulatory authorities and their branches, due to disputes arising from the issuance of loans and other related financial services.

Article 2 When a lender sues a people's court, it shall provide credit certificates such as debits, receipts, and debts, as well as other evidences that can prove the existence of the legal relationship of lending.

The creditor's certificate such as the debit, receipt, and debts held by the parties does not specify the creditor. If the party holding the creditor's certificate raises a private lending lawsuit, the people's court shall accept it. The defendant made a factual defense against the creditor's qualifications of the plaintiff. If the people's court heard that the plaintiff did not have the creditor's qualification, the ruling rejected the lawsuit.

Article 3 The parties to the loan have not agreed on the place of performance of the contract or the agreement is not clear. If the supplementary agreement has not been reached afterwards, and the claim is still undetermined according to the relevant terms of the contract or the trading habits, the place where the currency is accepted shall be the place of performance of the contract.

Article 4 If the guarantor provides the joint borrower with joint liability guarantee, and the lender only sue the borrower, the people's court may not add the guarantor as the joint defendant; if the lender only sue the guarantor, the people's court may add the borrower as the co-defendant.

If the guarantor provides a general guarantee for the borrower, and the lender only sue the guarantor, the people's court shall append the borrower as the co-defendant; if the lender only sues the borrower, the people's court may not add the guarantor as the co-defendant.

Article 5 After the people's court files a case and finds that the private lending behavior itself is suspected of illegal fund-raising crimes, it shall decide to reject the prosecution and transfer the clues and materials suspected of illegal fund-raising crimes to the public security or procuratorate.

If the public security or procuratorial organ does not file a case, or cancels the case after filing a case, or the procuratorial organ makes a decision not to sue, or if the judgment of the people's court becomes invalid, it does not constitute an illegal fund-raising crime, and the party has filed a lawsuit with the people's court on the same fact, the people's court Acceptable.

Article 6 After the people's court files a case, it finds that although it is related to the case of private lending disputes but is not the same fact and is suspected of illegal fund-raising and other clues and materials, the people's court should continue to hear cases of private lending disputes, and will be suspected of illegal fund-raising and other crimes. The clues and materials are transferred to the public security or procuratorate.

Article 7 The facts of basic cases of private lending must be based on the results of criminal cases, and if the criminal case has not been concluded, the people's court shall decide to suspend the proceedings.

Article 8 If a borrower is suspected of committing a crime or is found guilty by an effective judgment, and the lender sues the guarantor for civil liability, the people's court shall accept it.

Article 9: One of the following circumstances may be deemed to have the effective requirements for the loan contract between natural persons in Article 210 of the Contract Law:

(1) in cash, when the borrower receives the loan;

(2) Payment by bank transfer, online electronic remittance or through online loan platform, etc., when the funds arrive at the borrower's account;

(3) Where the bill is delivered, when the borrower obtains the right to the bill according to law;

(4) When the lender authorizes the specific fund account to the borrower, the borrower obtains the actual right to control the account;

(5) The lender provides the loan in other ways agreed upon with the borrower and the actual performance is completed.

Article 10 In addition to the loan contract between natural persons, if the parties claim that the private loan contract is effective from the time of the establishment of the contract, the people's court shall provide support, unless otherwise agreed by the parties or as otherwise provided by laws and administrative regulations.

Article 11 The private lending contracts required for the production and operation between legal persons, other organizations and between them shall be in addition to the circumstances stipulated in Article 52 of the Contract Law and Article 14 of these Provisions. Where the private lending contract is valid, the people's court shall support it.

Article 12 A legal person or other organization raises funds from employees within the unit through borrowings for the production and operation of the unit, and there is no circumstances as stipulated in Article 52 of the Contract Law and Article 14 of the Provisions. Where the private lending contract is valid, the people's court shall support it.

Article 13 If the borrower or the lender's loan behavior is suspected of committing a crime, or the judgment that has already taken effect constitutes a crime, and the party files a civil lawsuit, the private loan contract is not of course invalid. The people's court shall determine the validity of the private lending contract in accordance with Article 52 of the Contract Law and Article 14 of these Provisions.

If the guarantor claims that the borrower or the lender’s loan is suspected of committing a crime or the judgment that has already taken effect constitutes a crime, and the claim does not bear civil liability, the people’s court shall, according to the validity of the private loan contract and the guarantee contract, the degree of fault of the party, Determine the civil liability of the guarantor.

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

(1) Taking the credit funds of financial institutions and transferring them to the borrower with high profits, and the borrower knows or should know in advance;

(2) The funds obtained by borrowing from other enterprises or raising funds from the employees of the unit are transferred to the borrower for profit, and the borrower knows or should know in advance;

(3) The lender knows in advance or should know that the borrower's loan is still used for illegal criminal activities to provide loans;

(4) Violating the public order and good customs;

(5) Other violations of the mandatory provisions of the laws and administrative regulations.

Article 15 The plaintiff filed a civil lending lawsuit based on the evidence of the receipt, receipt, and debts. The defendant filed a defense or counterclaim based on the basic legal relationship and provided evidence to prove that the creditor's rights dispute was caused by non-private lending. The people's court should rely on the identification. The facts of the case are tried in accordance with the basic legal relationship.

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

Article 16 The plaintiff shall only file a civil lending lawsuit based on the credit certificate of the receipt, receipt, and debt, and the defendant has already repaid the loan, and the defendant shall provide evidence for his claim. After the defendant provided the corresponding evidence to prove his claim, the plaintiff should still bear the burden of proof for the establishment of the loan and loan relationship.

The defendant's defense of the loan has not actually occurred and can make a reasonable explanation. The people's court should combine the borrowing amount, the payment of the money, the economic ability of the parties, the local or inter-party transaction methods, trading habits, changes in the property of the parties and witness testimony. Factors, comprehensive judgment to verify whether the fact of borrowing occurs.

Article 17 The plaintiff shall only file a civil lending lawsuit based on the financial institution's transfer voucher. The defendant's defense of the transfer is to repay the previous borrowings or other debts of the two parties, and the defendant shall provide evidence of its claim. After the defendant provided the corresponding evidence to prove his claim, the plaintiff should still bear the burden of proof for the establishment of the loan and loan relationship.

Article 18 In accordance with the provisions of Article 174, paragraph 2 of the Interpretation of the Application of the Civil Procedure Law of the People's Republic of China, the plaintiff who has the burden of proof proves that he has refused to appear in court without justifiable reasons. There is evidence that the main facts of the loan behavior, the amount of the loan, the method of payment, etc. cannot be confirmed, and the people's court does not recognize the facts of the claim.

Article 19: When the people's court hears a case of private lending disputes, it finds that the following circumstances should be strictly examined: the reasons, time, place, source of money, mode of delivery, flow of money, relationship between borrowers and lenders, economic status, etc. Whether it is a false civil lawsuit:

(1) The lender clearly does not have the ability to lend;

(2) The facts and reasons on which the lender is sued are obviously not in accordance with common sense;

(3) The lender cannot submit the credit certificate or the credit certificate submitted may be forged;

(4) Both parties have participated in private lending lawsuits for a certain period of time;

(5) One or both parties refuse to attend the proceedings without justifiable reasons, and the entrusting agent is unclear about the facts of the loan or the contradiction;

(6) The parties have no disputes over the occurrence of the fact of borrowing or the arguments are obviously not in accordance with common sense;

(7) The spouse or partner of the borrower or other creditors of the offender file a factual objection;

(8) The situation in which the parties have transferred property at a low price in other disputes;

(9) The party improperly waives his rights;

(10) Other circumstances in which there may be false private lending lawsuits.

Article 20 If it is found that the plaintiff has applied for withdrawal of the lawsuit, the plaintiff shall not grant permission, and shall, in accordance with the provisions of Article 112 of the Civil Procedure Law, decide to reject the request.

If a litigant or other person maliciously creates or participates in a false lawsuit, the people's court shall, according to the provisions of Articles 111, 112 and 113 of the Civil Procedure Law, impose a fine according to law. Detention; if it constitutes a crime, it shall be transferred to a judicial organ with jurisdiction to pursue criminal responsibility.

Where a unit maliciously manufactures or participates in a false lawsuit, the people's court shall impose a fine on the unit and may impose fines and detentions on its principal responsible person or directly responsible person; if it constitutes a crime, it shall be transferred to a judicial organ with jurisdiction to pursue criminal responsibility.

Article 21: Others sign or seal the credit certificate or loan contract such as the receipt, receipt, and debt, but fail to indicate their guarantor's identity or assume the guarantee responsibility, or through other facts, it cannot be presumed to be the guarantor, and the lender requests it to bear If the responsibility is guaranteed, the people's court will not support it.

Article 22 The borrowers and lenders form a loan relationship through the online loan platform. The provider of the online loan platform only provides media services. If the parties request that they assume the guarantee responsibility, the people's court shall not support it.

The provider of the online loan platform expresses its guarantee for the loan through the website, advertisement or other media, or other evidence. If the lender requests the provider of the online loan platform to assume the guarantee responsibility, the people's court shall support it.

Article 23 The legal representative or responsible person of the enterprise signs a private loan contract with the lender in the name of the enterprise, and the lender, enterprise or its shareholders can prove that the borrowed item is used for the personal use of the legal representative or responsible person of the enterprise, and the lender requests Where the legal representative or person in charge of a company is listed as a co-defendant or a third party, the people's court shall grant permission.

The legal representative or responsible person of the enterprise signs a private loan contract with the lender in the name of the individual. The borrowed item is used for the production and operation of the enterprise. If the lender requests the enterprise and the individual to share the responsibility, the people's court shall support it.

Article 24: The parties sign the sale and purchase contract as the guarantee for the private loan contract. If the borrower fails to repay the loan after the loan expires and the lender requests to perform the sales contract, the people's court shall examine the legal relationship of the private loan and explain it to the parties. Change the claim. If the party refuses to change, the people's court ruled that the lawsuit should be rejected.

After the judgment made in accordance with the private loan legal relationship is effective, the borrower fails to perform the monetary debt determined by the effective judgment, and the lender can apply for the auction of the subject matter of the sale and purchase contract to repay the debt. The borrower or the lender has the right to claim the return or compensation for the difference between the price of the auction and the principal and interest of the loan.

Article 25 If the borrowers and lenders do not agree on interest, and the lender claims to pay interest on the loan period, the people's court shall not support it.

If the loan agreement between natural persons is unclear, and the lender advocates paying interest, the people's court will not support it. In addition to borrowing between natural persons, if the borrower and the lender agree on the interest of the loan, if the lender claims interest, the people's court should combine the contents of the private lending contract and determine the interest according to local or party's trading methods, trading habits, market interest rates and other factors.

Article 26 If the interest rate agreed by the borrower and the lender does not exceed 24% per annum, and the lender requests the borrower to pay interest at the agreed interest rate, the people's court shall support it.

The interest rate agreed by both the borrower and the lender exceeds the annual interest rate by 36%, and the excess interest agreement is invalid. If the borrower requests the lender to return the interest that has been paid more than 36% of the annual interest rate, the people's court shall support it.

Article 27 The amount of the loan stated in the credit certificate such as the receipt, receipt, and debt is generally recognized as the principal. If the interest is deducted from the principal in advance, the people's court shall recognize the amount actually borrowed as the principal.

Article 28 The borrower and the lender shall calculate the interest of the previous loan and settle the interest in the late loan and re-issue the creditor's certificate. If the previous interest rate does not exceed 24% of the annual interest rate, the amount stated in the reissued credit certificate may be recognized as the later period. The principal of the loan; the excess interest cannot be included in the principal of the later loan. If the agreed interest rate exceeds 24% per annum, and the party claims that the excess interest cannot be included in the late loan principal, the people's court shall support it.

According to the preceding paragraph, the sum of the principal and interest that the borrower should pay after the expiration of the borrowing period cannot exceed the sum of the interest of the entire borrowing period calculated based on the initial borrowing principal and the initial borrowing principal based on the annual interest rate of 24%. If the lender requests the borrower to pay more than the portion, the people's court will not support it.

Article 29 If both parties to a loan have an agreement on the overdue interest rate, they shall agree on it, but not to exceed 24% of the annual interest rate.

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

(1) The interest rate of the borrowing period is neither agreed nor the overdue interest rate is stipulated. The lender advocates that the borrower shall pay interest on the period of capital occupation at the annual interest rate of 6% from the date of overdue repayment, and the people's court shall provide support;

(2) The interest rate of the borrowing period is agreed but the overdue interest rate is not agreed. The lender advocates that the borrower shall pay interest on the period of the borrowing period according to the interest rate during the borrowing period from the date of overdue repayment, and the people's court shall support it.

Article 30 The lender and the borrower have agreed on the overdue interest rate and agreed on liquidated damages or other expenses. The lender may choose to claim overdue interest, liquidated damages or other expenses, or may claim it together, but the total annual interest rate is 24 The part of the people's court does not support it.

Article 31: If the interest is not stipulated but the borrower voluntarily pays interest, or exceeds the agreed interest rate, the interest or liquidated damage is voluntarily paid, and the interests of the state, the collective and the third party are not harmed, and the borrower requests the lender on the grounds of improper profit. If the return is made, the people's court will not support it, except for the interest of the borrower to return more than 36% of the annual interest rate.

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

If the borrower repays the loan in advance and claims to calculate interest according to the actual borrowing period, the people's court shall support it.

Article 33 After the promulgation of these Provisions, the Supreme People's Court's "Several Opinions on the Trial of Lending Cases by the People's Courts" promulgated on August 13, 1991 shall be abolished at the same time; the judicial interpretations previously issued by the Supreme People's Court are inconsistent with these Provisions. , no longer applicable.

Attached to Du Wanhua, the Supreme Court's Special Committee, on the authoritative interpretation of the ten highlights of the Regulations

(1) Definition of private lending. This part mainly stipulates the scope of application of the judicial interpretation of private lending, and clearly defines the private lending behavior and the scope of the subject. Private lending is a form of private financing that is spontaneously formed in the process of social and economic development relative to the country's formal financial industry. It has a long history and profound tradition in China, and is widely familiar to the society. The term “private lending” has been established. . In China, the lending market is mainly composed of financial institutions borrowing and private lending. This judicial interpretation deals with disputes arising from financial transactions between natural persons, legal persons and other organizations. Explain the first paragraph of the first paragraph. “The civil lending referred to in these Provisions refers to the behavior of natural persons, legal persons, other organizations and their mutual financial cooperation.” This definition reflects the unique nature of private lending. And the scope of the subject. The distinction between the title and the national financial regulatory agency is clarified, and the financial institution is distinguished from the scope of the borrowing entity.

(2) Acceptance and jurisdiction over private lending cases. Judging from the reality of private lending, most of the funds borrowed by the private sector belong to the private or idle funds of the private sector, which is characterized by looseness and extensiveness. Since the parties to the loan relationship have many kinship relationships or social relationships with colleagues, fellow villagers, and classmates, they often exhibit simplicity and arbitrariness in the form of lending. It is more common not to sign a written loan contract or simply issue a simple borrowing, receipt or owing by the borrower. In the event of a dispute, it is often difficult for both parties to lend sufficient evidence to substantiate their claim or defense. At this time, whether the people's court should accept such cases is controversial in judicial practice. This part of the judicial interpretation mainly stipulates the conditions for the prosecution of private lending cases; the determination of the place where the private lending contract is performed; and the guarantor's litigation status, etc., in order to better display the jurisdiction and jurisdiction of private lending disputes in the context of the registration system The legal basis.

(3) Provisions concerning the intersection of civil and criminal cases in private lending cases. With the continuous development of the market economy, the social relations of legal adjustment are increasingly complex. In private lending disputes, such cases are often intertwined with cases of illegally absorbing public deposits, fund-raising fraud, illegal business, etc., and are intertwined to some extent by the same legal facts or two legal facts that cross each other. Criminal cases and civil cases, that is, cross-mortal cases. The cross-docking issue mainly includes two aspects: the coordination of criminal procedures and the determination of substantive responsibilities. This part mainly includes: 1. For private lending cases suspected of illegal fund-raising crimes, the people's courts shall not accept or reject the prosecution, and transfer the clues and materials suspected of illegal fund-raising crimes to the public security or procuratorate. This provision is conducive to the better coordination and cooperation between the three organs of the Public Prosecution Law in combating and dealing with the crimes involving illegal fund-raising. 2. For crimes related to private lending cases, but not the same fact, the people's courts should transfer the criminal clue materials to the investigating organs, but the private lending cases continue to be tried; If the borrower is suspected of illegal fund-raising and other crimes or the effective judgment determines that it is guilty, and the lender sues the guarantor to bear civil liability, the people's court shall accept it.

(4) The effectiveness of private lending contracts. The judgment of the effectiveness of private lending contracts has important significance in judicial practice. Only based on an effective private lending contract, one party can claim to the other party that it has fulfilled its obligations in accordance with the contract, and it can also involve the burden of breach of contract and the cancellation of the contract. In view of the particularity of private lending contracts, the judicial interpretation mainly stipulates the following contents in this part: 1. The entry into force of private lending contracts between natural persons; 2. If the private lending contract signed between enterprises for production and operation is not in violation of Article 52 of the Contract Law and the provisions of Article 14 of this Judicial Interpretation, the validity of the private lending contract shall be determined. This is also the most important clause of this judicial interpretation. One; 3. The private lending contract signed by the enterprise for raising funds through the form of borrowing within the unit due to the needs of production and operation is valid; The borrower's or lender's loan behavior is suspected of committing a crime, or the judgment of the effective judgment constitutes a crime. The private loan contract is not of course invalid. Instead, the private loan contract shall be determined according to the provisions of Article 52 of the Contract Law and Article 14 of this Judicial Interpretation. Effectiveness.

(5) Responsibility for the Internet lending platform. In recent years, with the development of the Internet and related technologies, Internet finance has developed rapidly in China. Since the emergence of the p2p concept in 1979 and the connection of microfinance and Internet technology, p2p network lending has gradually entered the field of vision and officially entered China in 2007. Since 2013, p2p network lending has developed in a spurt, growing from the first few to a few in a year, thus not only achieving quantitative growth, but also expanding the types and methods of lending. China has formed new characteristics of different p2p online lending models, and also has new problems such as complex platform roles, lack of regulatory bodies, and lack of credit system. In the absence of current legal norms involving p2p network lending platforms. In order to better protect the legitimate rights and interests of the parties and further promote the sound development of China's network microfinance capital market, the "Regulations" respectively stipulate whether and how to bear civil liability when p2p involves the two legal relationships of intermediation and guarantee. . According to the provisions of the "Regulations", the borrowers and lenders form a loan relationship through the p2p online lending platform. If the provider of the online lending platform only provides media services, it will not assume the guarantee responsibility. If the provider of the p2p online lending platform passes the webpage, advertisement or Other media expressly or have other evidence to prove that they provide guarantee for borrowing. According to the lender's request, the people's court may decide that the provider of the p2p online lending platform assumes the guarantee responsibility.

(6) Determination of the mixed situation of private lending contracts and sales contracts. In the practice of private lending, there is a phenomenon in which the parties in order to avoid the debtor’s inability to repay the loan, often signing a sales contract at the same time as or after the signing of the private lending contract (mainly based on the house sales contract), and agreeing that the debtor cannot repay the principal and interest of the debt. , then fulfill the sales contract. How to determine the nature and effectiveness of the contract in such cases and how to deal with it is related to the unification of the people's courts and the maintenance of the interests of the parties. At the same time, the correct handling of such cases is of great significance for preventing false litigation, improving the guarantee norms, and promoting the healthy development of the economy. This judicial interpretation clearly stipulates that the parties through the signing of the sales contract as a guarantee for the private lending contract, the borrower can not repay the loan after the loan expires, and the lender requests to perform the sales contract, the people's court should be heard in accordance with the legal relationship of private lending. After the judgment made in accordance with the private loan legal relationship is effective, the borrower fails to perform the monetary debt determined by the effective judgment, and the lender can apply for the auction of the subject matter of the sale and purchase contract to repay the debt.

(7) The effectiveness of inter-enterprise lending. The "Opinions on the People's Courts' Trial of Lending Cases" promulgated by our institute in 1991 is limited to at least one party being a citizen (natural person), and for loans between enterprises and enterprises, according to the "Loan" issued by the central bank in 1996. The provisions of the General Rules and the judicial interpretations of our courts are generally considered invalid in violation of state financial supervision. This institutional regulation has been observed for a long time in the judicial community, and to a certain extent has played an important role in maintaining financial order and preventing financial risks. However, this system, which has continued from the planned economy era, has not only failed to eliminate the occurrence of inter-enterprise lending, but on the contrary, inter-enterprise lending has even become more and more intense. In reality, the huge borrowing demand among enterprises has spawned a series of indirect lending operations between enterprises. Especially in recent years, with the continuous development of China's socialist market economy, many enterprises, especially small and medium-sized enterprises, have a bottleneck in the development of the shortage of working capital and poor financing channels. Enterprises borrow money through private loans or borrow money from each other. Become an important channel for financing. However, in order to circumvent the regulations on the invalidity of funds borrowing between enterprises, many enterprises have carried out private financing through false transactions, joint ventures, and corporate executives to borrow in the name of individuals. As a result, corporate risks have increased substantially, and the order of private lending markets has been undermined.

"Time shift is easy." According to the current actual situation, we believe that the private lending between enterprises should be conditionally recognized. This judicial interpretation provides for this: enterprises should borrow funds for each other in order to meet the needs of production and management, and the judiciary should protect them. This regulation is not only conducive to maintaining the independent operation of enterprises, protecting the integrity of corporate legal persons, but also helping to alleviate the ills of “financing difficulties” and “funding expensive” and satisfying the needs of enterprises themselves; not only conducive to regulating the order of private lending market. Operation, promote the steady development of the national economy, and help to unify the standards of the referee and standardize the scale of civil trials.

Of course, allowing financing between companies does not mean that lending between companies can be completely left unchecked. It should be said that the lifting of the ban is not completely liberalized. We believe that normal inter-enterprise lending is generally done to solve the financial difficulties or the urgent need for production, but it cannot be used as a normal or permanent business. As a production and operation enterprise, if the main business is frequent lending, or as its main source of income, it may cause the nature of the enterprise to mutate and become a financial institution that has not been approved by the financial regulatory authorities to engage in special lending business. Production and operation-oriented enterprises engaged in recurring lending business will inevitably seriously disrupt the financial order and cause financial supervision disorder. Such behavior objectively harms the public interest of the society and must be negatively evaluated in terms of effectiveness. To this end, the "Regulations" specifically specify other circumstances in which inter-enterprise lending should be considered invalid.

(8) Provisions on the invalidity of private lending contracts. The identification of invalid contracts is related to the maintenance of the validity of the contract and the security and stability of the market operation order, as well as the protection of the public interest. In the judicial interpretation, the specific circumstances of invalid private lending behavior are clearly stipulated, which is conducive to standardizing China's financial order; guiding the healthy and orderly development of private lending; providing a normative basis for the trial of practice to accurately identify invalid private lending contracts. The "Regulations" specifically enumerate the circumstances in which private lending contracts should be considered invalid, including: 1. The credit funds of the financial institutions are transferred to the borrower with high profits, and the borrower knows or should know in advance; The funds obtained by borrowing from other enterprises or raising funds from the employees of the unit are transferred to the borrower for profit, and the borrower knows or should know in advance; The lender knows in advance or should know that the borrower’s loan is still used to provide borrowing for illegal criminal activities; Violating social public order and good customs; 5. Other violations of the mandatory provisions of the laws and administrative regulations.

(9) Handling of false civil litigation. After investigation, we found that there are many false lawsuits in the current civil trial field, especially in private lending cases. How to effectively curb false litigation in private lending disputes is a prominent problem in trial practice and a problem that needs to be solved urgently. The interest relationship of such cases is complicated, and often the interests of real rights holders cannot be guaranteed. Once the court fails to identify the false lawsuits and supports the interests of the false litigants, it will not only resolve the disputes, but will further intensify the contradictions between the parties. It is easy to trigger and intensify social conflicts. In short, false private lending lawsuits both violate the interests of real rights holders and waste limited judicial resources; they both disrupt the normal judicial order and affect social stability. Therefore, it is necessary to increase the prevention and crackdown on false litigation in order to maintain an honest and trustworthy litigation environment. How to identify false litigation in trial practice is the primary problem facing the suppression of false litigation. Regarding this issue, the people's courts at all levels have formed different treatment methods in the process of judicial practice, but they have also reached a basic consensus that the examination of evidence should be strengthened in the process of trial of private lending cases. The "Regulations" combines the findings of the trial practice of false private lending litigation, absorbs useful experience in practice, adopts the normative model of comprehensive judgment, and sums up the specific enumerated ten types that may belong to false private lending lawsuits. Behavior, such as the lender apparently does not have the ability to lend; the facts and reasons on which the lender is based are obviously not in accordance with common sense; the lender cannot submit the credit certificate or the credit certificate submitted is forged, etc., for the judge to hear the case Time to learn, reference. Of course, the correct identification of false private lending lawsuits also requires the judges to improve their cognitive ability based on the accumulation of their own trial experience, combined with the reasons, time, place, source of funds, delivery method, flow of funds and lending of borrowings. Whether the relationship between the two parties, the economic situation and other facts, the comprehensive judgment is a false civil lawsuit.

If it is found that it is a false lawsuit, the people's court shall, in addition to the judgment dismissing the plaintiff's request, strictly impose fines and detention on the law enforcement participants who maliciously manufacture or participate in the false lawsuit in accordance with the provisions of these Provisions; It is necessary to transfer judicial authorities with jurisdiction to pursue criminal responsibility.

(10) Interest rates and interest on private lending. The regulation of interest rates is the core issue of private lending, and it is also an important part of this judicial interpretation. The Third Plenary Session of the 18th CPC Central Committee identified the reform of financial marketization. One of the most important aspects is the marketization of interest rates. However, interest rate liberalization does not mean that interest rates are infinite, and it does not mean that interest rates are disordered. The upper limit of the private lending rate must be controlled. In addition to the convenience of supervision by the government and financial regulatory authorities, the regulation of private lending rates should also consider the real needs of both lenders and borrowers as market players. The loan interest rate of China's formal financial market is in a period of change. It has gone through the national unified loan interest rate, to the floating rate of the upper and lower limits of the national benchmark interest rate, and then to the lifting of the upper limit of the loan interest rate in 2004, and the process of removing the floating lower limit in 2013. . In the judicial practice of our country, the benchmark interest rate of the loan announced by the central bank is generally used as the “bank similar loan interest rate” in the referee. With the advancement of China's interest rate marketization reform process, it is imperative to reform the judicial policy with four times the benchmark lending rate as the upper limit of interest rate protection. How to adjust the private lending interest rate ceiling, what mode to adopt, and how to determine the fixed interest rate cap standard. The problems in this series of trial practice need to be answered. The contents of the "Regulations" on private lending rates and interest mainly include: 1. The borrower and the lender have not agreed on interest, or the interest between the natural persons is unclear, and the lender has no right to claim the borrower to pay the interest during the borrowing period; The interest rate agreed by the borrower and the lender does not exceed 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 by the borrower and the lender exceeds the annual interest rate by 36%, the interest exceeding 36% of the annual interest rate shall be If the claim is invalid, the borrower has the right to request the lender to return the interest paid over 36% of the annual interest rate; If the interest is deducted from the principal in advance, the people's court shall determine the principal amount according to the actual amount of the loan; Except as otherwise agreed by the borrower and the lender, the borrower may repay the loan in advance and calculate the interest according to the actual borrowing period. In addition, this section also provides for issues such as overdue interest rates, voluntary interest payments, and compound interest.

[Exclusive Manuscript and Disclaimer] Any work, such as "360 Original", without the written authorization of 360, may not be reproduced, extracted or otherwise used by any unit, organization or individual. If you have been authorized in writing, please indicate the source of 360. Anyone who violates the above statement and infringes on the legal rights and interests of Rong 360 shall be investigated for legal responsibility according to law. The materials and conclusions in the works are for user's reference only and do not constitute operational recommendations. To obtain written authorization, please send an email to: academy@rong360.com

Comment list (user comments are only for users to express their personal views, does not mean that the site agrees with its views or confirms its description)
you may also like
  • Supreme Law: Private lending rates over 36% are partially invalid!  Brief summary! In the past 20 years, private lending has been applied for 94 years of judicial interpretation and 95 years of loan general rules, against the gray era of private finance! The Supreme Court’s judicial interpretation officially issued a document for the private loan; the general rule of loans went into history! Inter-enterprise lending is not always valid! For the people...
  • The highest law delineates the annual interest rate red line for private lending. The interest rate is over 36% invalid.  A judicial interpretation published by the Supreme Law on the 6th, with the two key figures of 24% and 36% per annum, redefine the interest rate and interest of private lending. On the morning of August 6, the Supreme Law held a press conference in Beijing to issue the "Supreme People's Court on the trial of private lending...
  • The red line of private lending rates has increased by 36%.  The maximum interest rate for private lending should not exceed 36%. The news immediately became the focus of attention of all parties at the speed of the nuclear bomb. In this regard, Rong 360 gives an exclusive interpretation. At 10:00 on August 6, 2015, the Supreme People's Court issued the "Supreme People's Court on the trial of private lending...
  • The Supreme Court issued a judicial interpretation of private lending  On August 6th, the Supreme People's Court issued the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases". The "Regulations" clarified that five kinds of private lending contracts should be deemed invalid, including the lending of financial institutions. The funds are highly profitable...
  • What is the highest interest rate for private lending?  In order to save trouble, we can quickly fill the funding gap, and many people have locked their exports in private lending. But it is understandable that the interest rate of private loans is bound to be much higher than that of banks, but the maximum interest rate should not exceed much. Is there any law? In the agreement folk...