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Supreme Law: The private lending rate exceeds 36% partially invalid!

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

A brief summary! In the past 20 years, private lending has been applied to the judicial interpretation in 1994 and the general rules for loans in 1995.

The Supreme Court’s judicial interpretation was officially issued as the official name for private lending;Mortgage General goes into history! Loans between enterprises are not always invalid! For private lending, there is no longer a four-fold upper limit, instead of a 36% upper limit.;The private p2p online loan only provides information intermediary and does not bear legal responsibility.

Vernacular private lending:

First, "private lending" has been legalized. Before the private lending has always been a form of financing credit in the private sector, the government has not stipulated its legalization. Now the “Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases” has given a definition of private lending: Your existence is reasonable and legal. Individuals and businesses can borrow money from traditional financial institutions such as banks. But your identity is different from traditional financial institutions.

Second, signing a contract is very important. In the past, many private loans were made between relatives and friends. Therefore, everyone is also more casual. They don't sign contracts when they borrow money, or they simply make an IOU. The Supreme Law now tells you that in the future if you have a dispute and you want to go to court, if you want to go to court, we have conditional on the court. That is, you must sign a formal contract at that time to clarify the rights and obligations of both parties. The contract court accepted your dispute.

3. The courts involved in criminal offences will not be accepted. In private lending, crimes such as the illegal absorption of public deposits, fund-raising fraud, and illegal business operations are often accompanied. This is no longer a simple private lending dispute. The court cannot control this, and the court also gives such cases to the public. Public security or inspection agencies to control. Therefore, before signing a contract, it is best to judge the borrower’s identity and authenticity.

Fourth, we must see whether the contract is effective. The loan contract between natural persons can take effect as long as it involves the following points: 1. Payment in cash, from when the borrower receives the loan; 2. Payment in the form of bank transfer, online electronic remittance, or through an online loan platform, etc. When the borrower's account is used; 3. Where the bill is delivered, when the borrower obtains the right to the bill according to law.

Fifth, the P2P platform assumes no responsibility. If the P2P platform only provides media services, then the investor and the borrower require them to assume the guarantee responsibility when the problem arises, and the People's Court will not support it. However, the P2P platform expressly stated that it will provide guarantees. After the problems occur, the people's court will support the lender's request for its guarantee responsibilities. Therefore, when investors invest in online loans, they must be aware of whether the platform is responsible or not. More importantly, when you invest, if the platform publicly promises or declares your money to provide principal and interest guarantees on the website, remember! Be sure to take a screenshot!

Sixth, if you are worried about the person who can borrow your money, you can do it. When borrowing, you first look to see if the borrower has any assets before, such as houses, cars, luxury goods, etc. When you sign a loan contract, you can sign another contract at the same time. The general content is that if he does not have the money in the future, you can use his valuable things to offset the debt, and the court also supports you.

Seventh, loans between enterprises and enterprises do not have to be sneaky. Previously, companies and businesses borrowed money from each other is not recognized by the law, many companies are trying to borrow money to find ways to, for example, to the corporate boss's personal reputation to borrow money, engage in some false trading and other tricks to evade the law to complete the loan . Now, the Supreme Law recognizes the behavior of borrowing between companies, but it is also stipulated, that is to say, you cannot borrow every day, and finally develop into a company that does not engage in other production and business operations, and specifically engages in lending business. That is not allowed. of.

8. It should be noted that when signing private lending contracts, these five conditions are ineffective. 1. Zhang San’s credit qualification is good, and he can borrow money from banks to low interest rates. However, Mr. Li’s credit qualifications are poor and he can’t borrow money from banks. However, Li Si has been short of money. Then Li Si discussed the matter with Zhang San. Zhang Sanxian borrowed money from the bank and then lent it to Li Si at a higher interest rate than the bank. This behavior is not allowed! 2. A company borrows money from company B and lends it to company C with higher interest, or company A borrows money from its own staff and lends it to company C with higher interest. This will not work! 3. The lender clearly knows that the borrower's money is used for illegal purposes, but it also lends it to the borrower.

Nine, lenders do not maliciously prosecute. Obviously, you simply do not have the ability to borrow money, or you have forged a loan contract. Not only is it not accepted by the court, but you are also legally responsible. This is to remind the borrower not to prosecute maliciously. Even if you are really cheated and you don't have strong evidence, you don't want to fake it.

X. In these situations of private lending, the borrower may not pay interest. 1. If the interest is not stated in the contract, the borrower may not return it. 2. If the interest exceeds 36%, the borrower may not return it. 3, interest deducted in the principal, interest can not be calculated as the principal, for example, Zhang San lent to Li four 100 yuan, which deducted 10 yuan in advance, then Zhang San’s principal lent to Li Si is 90 yuan . 4. The borrower can pay interest in advance. If you pay back in advance, you may not need to pay the interest in accordance with the contract, and calculate the interest based on the actual time of your loan. In other words, it is cost-effective for the borrower to pay back in advance.


original:

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

Supreme People's Court

August 6, 2015

Legal Interpretation [2015] 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)

To properly handle private lending disputes, according to the General Principles of Civil Law of the People's Republic of China, the Law of the People's Republic of China on Property Rights, the Guarantee Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China, and the Criminal Procedure of the People's Republic of China The provisions of the relevant laws such as the "Law" and the combination of the trial practice have formulated these regulations.

Article 1 The term "private lending" as used in these Regulations refers to the behavior of natural persons, legal persons, and other organizations that conduct financial financing through each other and between them.

The financial institutions engaged in loan business approved by the financial supervision department and their branch offices shall not apply this provision due to disputes arising from the issuance of loans and other related financial services.

Article 2 A lender shall, when filing a lawsuit in a people's court, provide evidence of debts, receipts, owments, and other evidence that can prove the existence of a legal relationship for lending.

The evidence of the debts, receipts, and owments held by the parties does not state the creditors. If the party holding the vouchers has filed a civil loan lawsuit, the people’s court shall accept the claims. The defendant filed a factual defense against the plaintiff’s creditor’s qualifications. After the People’s Court heard that the plaintiff did not qualify as a creditor, the court ruled to reject the lawsuit.

Article 3 Where the lenders and borrowers have not agreed on the place of performance of the contract or the agreement is unclear, and no supplementary agreement has been reached afterwards, if the relevant provisions of the contract or the trading habits are still unclear, the place where the receiving currency is located shall be the place of performance of the contract.

Article 4 The guarantor provides the borrower with joint and several liability guarantees. If the lender only sues the borrower, the people's court may not use the additional guarantor as the co-defendant; if the lender only sues the guarantor, the people's court may add the borrower as the co-defendant.

Where the guarantor provides general guarantees for the borrower, and the lender only stipulates the guarantor, the people's court shall add the borrower as the co-defendant; if the lender only sues the borrower, the people's court may not use the additional guarantor as the co-defendant.

Article 5: After the People's Court has established the case and finds that the private lending activity itself is suspected of criminalizing illegal fund-raising, it shall rule that the prosecution shall be rejected, and clues and materials suspected of being illegally fund-raised shall be transferred to the public security or procuratorial organs.

The public security or procuratorial organs shall not file a case, or cancel the case after filing an investigation, or the procuratorial agency makes a decision not to prosecute, or the people’s court shall, after being judged by the effective judgment of the People’s Court, not constitute an illegal fund-raising crime, and the parties have brought a lawsuit to the people’s court with the same facts. Acceptable.

Article 6: After the People's Court has established a case, if it finds clues or materials suspected of illegal fund-raising or other crimes that are related to private lending disputes but are not of the same facts, the people's court shall continue to hear cases of civil lending disputes and will be involved in crimes such as illegal fund-raising. The clues and materials were transferred to public security or prosecution agencies.

Article 7 The facts of the basic case of private lending must be based on the outcome of the criminal case. If the criminal case has not yet been concluded, the people's court shall rule that the case should be suspended.

Article 8 If a borrower is found guilty of committing a crime or has entered into force, he shall be guilty of a crime. If the lender sue to request the guarantor to bear civil liability, the people's court shall accept it.

Article 9 may be regarded as having one of the following conditions: Article 210 of the Contract Law shall govern the requirements for the entry into force of a loan contract between natural persons:

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

(2) When the funds are paid in the form of a borrower's account by means of bank transfer, online electronic remittance, or through an online loan platform;

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

(4) Where the lender authorizes the borrower to control the controlling rights of a specific fund account, the borrower shall obtain the actual controlling power over the account;

(5) When the lender provides the borrowings in other ways agreed with the borrower and actually performs the completion.

Article 10 With the exception of the loan contract between natural persons, the parties concerned advocate that the private loan contract shall become effective when the contract is established, and the people's court shall support it, unless otherwise agreed by the parties or otherwise provided for by laws or administrative regulations.

Article 11 In the case of private lending contracts concluded between legal entities and other organizations and between them for production and business operations, except for the circumstances stipulated in Article 52 of the Contract Law and Article 14 of these Provisions, the parties concerned shall If it is argued that the private lending contract is effective, the people's court should support it.

Article 12 A legal person or other organization shall raise funds for the employees within its own unit through the form of loans for the production and operation of the unit, and there shall be no circumstances as stipulated in Article 52 of the Contract Law and Article 14 of these Provisions. If it is argued that the private lending contract is effective, the people's court should support it.

Article 13 The borrower or the lender’s borrowings are suspected of committing a crime, or the verdict that has already entered into force constitutes an offense. If the parties filed a civil lawsuit, the private lending contract was not, of course, invalid. The people's court shall determine the effectiveness of private lending contracts in accordance with Article 52 of the Contract Law and Article 14 of these Provisions.

If the guarantor uses the borrower's or lender's borrowing behavior as suspected of committing a crime or is deemed to have entered into force as a criminal offence on the grounds that it does not assume civil liability, the people's court shall rely on the validity of the private lending contract and the guarantee contract and the degree of fault of the parties, according to the law. Determine the civil liability of the guarantor.

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

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

(2) to re-lend the funds obtained by lending to other enterprises or by raising funds from the employees of the unit to the borrower, and the borrower knows in advance or should know;

(3) The lender knows in advance or should know that the borrower borrows for illegal activities and still provides loans;

(4) Violating social public order and good customs;

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

Article 15 The plaintiff brings a private lending litigation based on evidence of debts, receipts, and owments, the defendant files a defense or counterclaim on the basis of the basic legal relationship, and provides evidence to prove that the creditor's rights dispute is caused by non-private lending. The facts of the case are examined in accordance with the basic legal relationship.

The provisions of the preceding paragraph do not apply to parties’ claims and debt agreements reached through mediation, reconciliation or liquidation.

Article 16 The plaintiff initiates a private lending litigation based only on documents of debt, receipts, and owments, and the defendant's defence has already repaid the borrowing, 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 on the establishment of the lending relationship.

The defendant’s defense of borrowing money has not actually occurred and can be reasonably explained. The people’s court should combine the amount of the loan, the payment of the money, the financial power of the parties, the local or inter-party transactions, the trading habits, the changes in the property of the parties, and witness testimony. Factors, comprehensive judgments verify the occurrence of loan facts.

Article 17 The plaintiff files the civil lending litigation based on the financial institution's transfer vouchers only. The defendant's defense transfer is to repay the borrower's previous borrowings or other debts. The defendant should provide proof of its claim. After the defendant provided the corresponding evidence to prove his claim, the plaintiff should still bear the burden of proof on the establishment of the lending relationship.

Article 18 According to the second paragraph of Article 174 of the “Explanation on the Application of the Civil Procedure Law of the People's Republic of China”, the plaintiff who bears the burden of proof has refused to appear in court without justified reasons. There is evidence that the main facts of the case, such as the behavior of borrowing, the amount of borrowing, and the payment method, cannot be confirmed, and the people’s court does not recognize the facts that it claims.

Article 19 When a people’s court hears a case of disputes over private lending, the following circumstances shall be discovered. The cause, time, location, source of funds, delivery methods, flow of funds, and the relationship between the borrower and the borrower, and the economic situation shall be strictly examined for comprehensive judgment. Whether it is a false civil lawsuit:

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

(b) The facts and grounds on which the lender prosecuted were obviously not in keeping with common sense;

(3) The possibility that the lender may not submit the certificate of claim or that the submitted certificate of credit has been forged;

(4) Both parties involved in private lending litigation for a certain period of time;

(5) One or both parties of the party refuses to appear in court without a valid reason, and the entrusting agent makes unclear statements on the facts of the loan or the inconsistency between the statements;

(6) There is no dispute or defense between the two parties on the occurrence of loan facts;

(7) The fact that the spouse or partner of the borrower and the other creditors of the offender raise objections based on facts;

(8) Where the parties have low-cost transfer of property in other disputes;

(9) The party did not just give up his rights;

(10) Other situations where there may be false private loan lawsuits.

Article 20: If the plaintiff applies for withdrawal of a lawsuit, the people's court shall not permit the plaintiff to ascertain that it belongs to a false private loan lawsuit, and shall reject the request in accordance with Article 112 of the Civil Procedure Law.

Where a litigant participant or other person maliciously creates or participates in a false lawsuit, the people’s court shall, in accordance with the provisions of Articles 111, 112, and 113 of the Civil Procedure Law, impose a fine according to law. Detention; Constitute a crime, it shall be transferred to the judicial authority to investigate criminal responsibility.

Where a unit maliciously manufactures or participates in false lawsuits, the people's court shall impose a fine on the unit and may impose fines and detentions on its principal responsible persons or directly responsible personnel; if a crime is constituted, it shall be transferred to a judicial organ with jurisdiction to investigate the criminal liability.

Article 21 Others sign or seal on the evidence of debts, receipts, owments, etc., or loan contracts, but do not indicate their guarantor status or undertake guarantee responsibilities, or cannot presume that they are guarantors through other facts, and the lender has asked them to bear the guarantor. If the responsibility is guaranteed, the people's court will not support it.

Article 22 The lenders and borrowers form a lending relationship through an online loan platform. Providers of online lending platforms only provide media services. The people’s courts do not support the parties’ requests for their liability.

The provider of the online loan platform expressly or otherwise proves to be a guarantee for borrowing through web pages, advertisements or other media. If the lender requests the provider of the online loan platform to bear the guarantee responsibility, the people’s court shall support it.

Article 23: The company’s legal representative or person in charge shall sign a private lending contract with the lender in the name of the enterprise. The lender, the enterprise, or its shareholders can prove that the borrowed item is for the personal use of the company’s legal representative or person in charge. The lender’s request Where a legal representative or person in charge of a company is listed as a joint defendant or a third person, the people's court shall permit it.

The legal representative or responsible person of the enterprise signs the private lending contract with the lender in his personal name. The borrowed money is used for the production and operation of the enterprise. If the lender requests the enterprise and the individual to jointly bear the responsibility, the people's court shall support it.

Article 24 The parties sign a purchase and sales contract as a guarantee for a private lending contract. After the loan expires, the borrower cannot repay the loan. If the lender requests the sale and purchase contract, the people's court shall go through the legal relationship of private lending and explain to the parties. Change of litigation request. If the parties refused to change, the people's court ruled that the prosecution should be rejected.

After the judgment rendered pursuant to the legal relationship of private lending has taken effect, the borrower fails to perform the monetary debt determined by the effective judgment, and the lender may apply for auction of the subject matter of the sale contract to pay off the debt. The borrower or the lender has the right to claim return or compensation for the difference between the proceeds from the auction and the principal and interest to be repaid.

Article 25 Where the borrower and the borrower do not have an interest, the people’s court will not support the lender’s claim to pay interest during the period.

The agreement on the interest between the natural persons on borrowing is not known. If the lender claims to pay interest, the people’s court will not support it. Except for loans between natural persons, if the lenders and borrowers have no clear agreement on the interest on borrowings, and the lender claims interest, the people's court shall combine the contents of private lending contracts and determine the interest according to local or party transaction methods, trading habits, market interest rates and other factors.

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

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

Article 27 The amount of borrowings stated in the documents of debts such as receipts, receipts, and delinquent articles is generally recognized as the principal amount. If interest is deducted in advance in the principal amount, the people’s court shall recognize the amount actually borrowed as the principal amount.

Article 28 After the lenders and borrowers settle the principal and interest of the pre-borrowed loan, the interest will be included in the principal of the loan in the latter period and the debtor certificate will be issued again. If the pre-interest rate does not exceed the annual interest rate of 24%, the amount specified in the re-issued debenture certificate can be deemed as the later period. The principal of the loan; more than part of the interest cannot be included in the loan principal in the subsequent period. The stipulated interest rate exceeds the annual interest rate of 24%. If the parties claim that more than part of the interest cannot be included in the loan principal in the later period, the people’s court shall support it.

Calculated according to the preceding paragraph, the sum of principal and interest that the borrower should pay after the borrowing period expires cannot exceed the sum of the original loan principal and the original loan principal amount, which is the sum of interest for the entire borrowing period calculated at an annual interest rate of 24%. If the lender requests the borrower to pay more than part of it, the people’s court will not support it.

Article 29 Where both the borrower and the lender have agreed on the overdue interest rate, they shall agree that they shall not exceed 24% of the annual interest rate.

If no overdue interest rate has been agreed or the agreement is not clear, the people's court may distinguish between different circumstances:

(1) It has neither agreed on the borrowing interest rate nor agreed overdue interest rate, and the people's court shall support the borrower's claim that the borrower shall pay interest at the annual interest rate of 6% from the date of the overdue repayment to the fund occupancy period;

(2) The interest rate borrowed during the period is agreed but no overdue interest rate is agreed. The people's court shall support the borrower's claim that the borrower pays the interest during the period of capital occupancy from the date of the overdue payment according to the interest rate within the period.

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

Article 31 Where there is no interest, but the borrower voluntarily pays, or if the borrower voluntarily pays interest or liquidated damage more than the agreed interest rate, and does not harm the interests of the state, the collective, and the third party, the borrower also claims the unjust enrichment for the lender. In case of return, the People’s Court will not support it, except for the borrower’s request to return interest exceeding the 36% 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 advocates calculating the interest according to the actual borrowing period, the people's court shall support it.

Article 33 After these regulations are promulgated and promulgated, the Supreme People's Court issued the "Several Opinions on People's Courts on the Case of Lending and Borrowing" issued on August 13, 1991; the previous judicial interpretation issued by the Supreme People's Court was inconsistent with these regulations. Is no longer applicable.

Attached to Supreme Court Commissioner Du Wanhua's authoritative interpretation of the ten highlights of the Regulations

(a) The 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 private financing form spontaneously formed in the process of social and economic development relative to the formal financial industry in the country. It has a long history and profound traditions in China and is widely known to the public. The term “private lending” has become a common practice. . In China, the lending market is mainly composed of financial institutions lending and private lending. This judicial interpretation resolves disputes between natural persons, legal persons, and other organizations arising from capital financing. Explaining the first paragraph of the first paragraph, “The private lending referred to in these regulations refers to the behavior of natural persons, legal persons, and other organizations and their interaction with each other in capital financing.” This definition reflects the peculiar nature of private lending behavior. And subject range. The distinction between the form of the title and the national financial supervisory authority is clearly defined, and the financial institution is also distinguished from the scope of application of the lender.

(b) The acceptance and jurisdiction of private lending cases. From the perspective of the actual situation of private lending, private lending funds mostly belong to the private or idle funds of the private sector and are loose and extensive. Due to the fact that there are more relatives or colleagues, fellow citizens, classmates and other social relations between the parties in the loan and loan relationship, the form of borrowing often shows simplicity and randomness. It is not uncommon to sign a written loan contract or simply issue a simple loan, receipt, or IOU from the borrower. In the event of a dispute, it is often difficult for the borrower and the borrower to provide sufficient evidence to prove their claim or defense. At this time, whether the people's court should accept such cases is still 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., and provides a better use of the judiciary for the acceptance and jurisdiction of private lending disputes in the context of the registration system. The legal basis.

(3) Provisions concerning the crossover of civil and criminal cases in private lending cases. With the continuous development of the market economy, the legally adjusted social relations are increasingly complex and complex. In private lending disputes, such cases are often intertwined with cases of illegal absorption of public deposits, fund-raising fraud, illegal business, etc., and are caused by the same legal facts or two legal facts that cross each other, to a certain extent, intertwined. Criminal and civil cases, that is, criminal cases that intersect. The cross-ministerial issues mainly include the coordination of criminal procedure and the determination of substantive responsibility. This part mainly includes: 1. Regarding private lending cases suspected of illegal fund-raising crimes, the people's court shall not accept or reject the prosecution, and shall transfer clues and materials suspected of illegal fund-raising crimes to the public security or procuratorial organs. This provision is conducive to better harmonization and cooperation among the three organs of the Public Security Law when it comes to cracking down and dealing with criminals involved in illegal fund-raising. 2. For crimes that are related to private lending cases, but are not the same facts, the people's courts should transfer the crime lead materials to investigation agencies, but private lending cases continue to be heard; If the borrower is suspected of committing an illegal fund-raising or other crimes or it is found to be guilty, the people's court shall accept the case when the lender prosecutes the guarantor for civil liability.

(d) The effectiveness of private lending contracts. Judgment of the effectiveness of private lending contracts is of great significance in judicial practice. Only based on an effective private lending contract, one party can claim the other party's performance of its obligations in accordance with the contract, and it can also involve issues such as the liability for breach of contract and the release of the contract. In view of the special nature of private lending contracts, the judicial interpretation mainly stipulates the following in this section: 1. The entry into force of private lending contracts between natural persons; 2. For private lending contracts signed between enterprises for production and operation, as long as they do not violate the provisions of Article 52 of the Contract Law and the content of Article 14 of this judicial interpretation, the validity of private lending contracts shall be determined. This is also the most important clause of this judicial interpretation. One of the three; The private lending contract signed by the enterprise to raise funds through the form of borrowing within the unit due to the needs of production and operation is effective; Borrower's or lender’s borrowings are suspected of crimes, or a verdict of entry into force constitutes a crime. The private lending contract is not, of course, invalid, and the private lending contract should be determined in accordance with Article 52 of the Contract Law and the content of Article 14 of this judicial interpretation. Effectiveness.

(e) Responsibility for internet lending platforms. 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 linking of microfinance and internet technology, the p2p network lending has gradually entered people's field of vision and entered China in 2007. Since 2013, the development of p2p network lending has grown from tens of thousands in the first few years to a few thousand, which has not only led to growth in numbers, but also expanded the types and methods of borrowing. China has already formed new features that are different from foreign p2p online loan models. At the same time, it also creates new problems such as complicated platform roles, lack of regulatory bodies, and lack of credit systems. In the absence of legal regulations concerning the current p2p network lending platform In order to better protect the lawful rights and interests of the parties and further promote the sound development of China's online microfinance capital market, this "Regulation" makes provision for whether and how civil liability should be assumed when p2p involves intermediaries and guarantees. . In accordance with the provisions of the "Regulations", both lenders and borrowers form a lending relationship through the p2p online lending platform. Providers of online lending platforms only provide media services, but do not assume guarantee liability if p2p lending platform providers pass webpages, advertisements, or Other media expressly or otherwise have evidence to prove that it is providing security for the loan. According to the lender's request, the people's court may decide that the provider of the p2p online loan platform shall bear the guarantee responsibility.

(6) Determination of the mixture of private lending contracts and sales contracts. In the practice of private lending, there is currently a phenomenon where the parties are not able to repay the loan to avoid the debtor, often at the same time as signing the private lending contract or after signing a sales contract (mainly based on the sale contract), the debtor cannot agree to pay 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, are related to the unification of the people's court and the maintenance of the vital interests of the parties. At the same time, the correct handling of such cases is of great significance in preventing false lawsuits, perfecting guarantee standards, and promoting healthy economic development. This judicial interpretation clearly stipulates that the parties sign a sales contract as a guarantee for a private lending contract. After the loan expires, the borrower cannot repay the loan. If the lender requests to fulfill the sales contract, the people's court shall examine the legal relationship of private lending. After the judgment rendered pursuant to the legal relationship of private lending has taken effect, the borrower fails to perform the monetary debt determined by the effective judgment, and the lender may apply for auction of the subject matter of the sale contract to pay off the debt.

(7) The effectiveness of the loan between enterprises. The “Several Opinions on People’s Courts on Lending and Mortgage Cases” promulgated by our institute in 1991 restricts private lending principals to at least one party only as a citizen (natural person), and for loans between enterprises and enterprises, according to the “loan” promulgated by the Central Bank in 1996. The provisions of the General Principles and related judicial interpretations of our Institute are generally considered to be invalid in violation of the national financial supervision. This institutional requirement has long been followed 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 eliminated the occurrence of loan-to-business behavior among enterprises. On the contrary, there has even been a growing trend of inter-enterprise loans. In reality, the huge demand for loans between companies has spawned a series of indirect lending operations between companies. Especially in recent years, with the continuous development of China’s socialist market economy, many companies, especially small and medium-sized micro-enterprises, have a bottleneck in the development of working capital shortages and poor financing channels. Companies use private loans or lend funds to each other. Become an important channel for financing. However, in order to circumvent the regulations on the invalidity of capital lending among enterprises, many companies have conducted private financing through false transactions, nominal joint ventures, and corporate executives borrowing money on their personal names, leading to a substantial increase in corporate risks and disruption of the private lending market order.

"Time shift is law easy." According to the current actual situation, we have considered that the conditional recognition should be given to private lending among enterprises. This judicial interpretation stipulates that enterprises should borrow funds from each other for the needs of production and operation, and the judiciary should protect them. This provision is not only conducive to maintaining the self-management of enterprises and protecting the integrity of corporate legal persons, but also helps to alleviate the chronic problems such as “financing difficulties” and “expensive financing” of enterprises, and meets the needs of the enterprises themselves; it not only helps regulate the orderly development of the private lending market. The operation will promote the steady development of the national economy, and it will be conducive to the unification of refereeing standards and the standardization of civil trials.

Of course, allowing companies to finance each other does not mean that they can completely ignore the borrowing between companies and let themselves go. It should be said that the lifting of the ban is not completely liberalized. We believe that normal inter-enterprise loans are generally for the purpose of resolving financial difficulties or urgent production needs, but they cannot be the norm and common industry. As a production-and-operating enterprise, if the company uses regular lending as its main business, or uses it as its main source of income, it may cause the company's nature to mutate and become a financial institution that has not been approved by the financial regulatory authority to engage in a special lending business. Production and business-type enterprises engaged in regular lending operations will inevitably severely disrupt financial order and cause financial supervision to be disorderly. This kind of behavior harms the social public interest objectively, and must make a negative evaluation from the effect. For this reason, this "Regulation" specifically stipulates the other situations in which the inter-enterprise lending should be deemed to be invalid.

(8) Provisions on invalidation of private lending contracts. The determination of an invalid contract is related to the maintenance of the validity of the contract and the security and stability of the market operation order. It is also related to the protection of public interests. In the judicial interpretation, it is clear that the specific situation of invalid private lending behavior is conducive to standardizing China's financial order; guiding the healthy and orderly development of private lending; and providing a normative basis for trials to accurately identify invalid private lending contracts. This "Regulation" specifically lists the situations in which a private lending contract should be deemed invalid, including: 1. The financial resources of the financial institution that has acquired the funds are transferred to the borrower by high profits, and the borrower knows in advance or should know; The funds obtained by borrowing from other enterprises or being raised from the employees of the unit shall be re-lending to the borrower for profit, and the borrower shall know in advance or shall know; The lender knows in advance or should know that the borrower borrows for illegal activities and still provides loans; Violation of public order and social customs; 5. Others violate the mandatory provisions of the effectiveness of laws and administrative regulations.

(9) Dealing with false civil lawsuits. After investigation, we found that there are many false lawsuits in the field of civil trials, especially in private lending cases. How to effectively curb fraudulent lawsuits in private lending disputes is a prominent problem in trial practice, and it is also an issue that needs to be solved urgently. The interests of such cases are complex, and often the interests of genuine rights holders cannot be guaranteed. Once the courts fail to identify false lawsuits and support the interests of false litigants, they not only fail to resolve the dispute, but also intensify the contradictions between the parties. It is easy to trigger and intensify social conflicts. In short, false private lending lawsuits not only infringe on the interests of real rights holders, but also waste a limited amount of judicial resources; they both disrupt the normal order of judicial review and affect social stability. Therefore, we must increase the prevention and crackdown on false lawsuits to maintain an honest and trustworthy litigation environment. How to identify false lawsuits in trial practice is the most important issue in the fight against false litigation. Regarding this issue, people's courts at various levels have formed different approaches in the judicial practice process, but have also reached a basic consensus that they should strengthen the review of evidence in the process of private lending cases. This "Regulation" combines the results of investigations on the practice of false private loan litigation trials, incorporates useful empirical practices in practice, adopts a standardized mode of comprehensive judgment, and summarizes ten specific examples of possible false civil litigation lawsuits. Behavior, such as the lender obviously does not have the ability to lend; the facts and grounds on which the lender prosecutes are apparently inconsistent with the common sense; the lender cannot submit the credence certificate or the submitted creditor’s certificate may be forged, etc., for the judge to hear the case Reference and reference. Of course, the correct identification of false private lending lawsuits also requires that judges increase their cognitive ability based on their own accumulation of trial experience, combined with the reasons, time, location, sources of funds, delivery methods, money flow, and lending. The facts as to the relationship between the two parties, the economic status, and other facts are comprehensive judgments on whether they are false civil lawsuits.

After the trial found that it was a false lawsuit, the people's court must, in addition to the plaintiff's request, reject the plaintiff’s request, and strictly follow the provisions of the “Regulations” to impose fines and detentions on those who participated in the false lawsuit in accordance with the law; It must be transferred to a judicial authority with jurisdiction to investigate criminal liability.

(10) Interest rates and interest on private lending. The regulation of interest rates 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 18th CPC Central Committee established the reform of financial marketization. One of the important aspects is the liberalization of interest rates. However, the marketization of interest rates does not mean that interest rates are unlimited, nor does it mean that interest rates are disordered. The upper limit of private lending rates must be controlled. In addition to considering the convenience of supervision by the government and financial regulatory authorities, the regulation of private lending interest rates must also consider the real needs of both the lender and the borrower as market players. The loan interest rate of China's formal financial market is in a period of change. It has experienced the transition from the national unified loan interest rate to the floating interest rate based on the national benchmark interest rate, and then the floating ceiling of loan interest rate was lifted in 2004. . In China's judicial practice, the benchmark loan interest rate announced by the central bank is commonly used as the "bank loan interest rate of the same kind" in the referee. With the advancement of China's interest rate marketization reform, it is imperative to reform the judicial policy with the four times the benchmark lending rate as the upper limit of interest rate protection. How to adjust the upper limit of the private lending rate, how to adopt the model, and how to determine the fixed rate ceiling, the questions in this series of trials are urgently answered. The contents of the “Regulations” concerning private lending rates and interest mainly include: The borrower and the borrower have no agreement on interest, or the agreement between the natural persons on the borrowing of interest is unknown, and the lender has no right to demand that the borrower pay interest on the borrowing period; The interest rate agreed between the lender and the borrower does not exceed the annual interest rate of 24%. 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 lender and borrower exceeds the annual interest rate of 36%, the interest exceeding 36% of the annual interest rate should be If it is found to be invalid, the borrower has the right to request the lender to return the interest that has been paid for more than 36% of the annual interest rate; 3. Where interest is deducted in advance in the principal amount, the people's court shall determine the principal amount as the amount actually borrowed; Unless otherwise agreed between the lender and the borrower, the borrower may repay the loan in advance and calculate the interest according to the actual loan period. In addition, this part also stipulates issues such as overdue interest rates, interest payments on a voluntary basis, and compound interest.

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