I. IOU: It's not easy to say I love you —— Analysis of common IOU disputes and trap types
The names 1, "IOU", "IOU", "receipt" and-cannot be ignored.
What kind of proof should I issue to lend money to my friends? In real life, the most common vouchers are as follows: "IOU", "IOU" and "receipt". Although there is only one word difference, their legal meanings are quite different. Although the name is not the only decisive factor to determine the legal relationship, once it is resorted to the law, it will undoubtedly have a great influence on the judge's judgment.
"IOU" represents the loan contract relationship, which is easy to prove with "IOU", and the law is clear and does not need other evidence to support it.
"IOU" is generally the legal reason for the creditor-debtor relationship determined after the settlement of economic exchanges between the two sides in the past. Only relying on "IOUs" can not literally explain the reasons for the formation of creditor's rights relationship, so the legal relationship is relatively complicated.
"Receipt" is generally used as a voucher written to the sender by the party who receives the money and goods. Only by receipt, it cannot be concluded that there is a loan relationship between the party issuing the receipt and the party receiving the receipt.
In addition, different names will also lead to the starting point of the limitation of action, that is, the calculation of the limitation of action. If it is written as an IOU, the applicable statute of limitations is two years. If there is a repayment period, the limitation of action shall be calculated from the repayment date; If the repayment time is not stipulated in the receipt, the lender may claim the right at any time, and the limitation of action can be calculated when claiming repayment;
However, if you write "IOU", although the limitation of action is also two years, it starts from the date written on the IOU.
Therefore, when you lend money to a friend, the correct way is to ask him to issue an "IOU" instead of an "IOU" and a "receipt".
2. Who borrowed the money-the borrower's name can't just be written as "third brother" or "fourth sister"
In private lending, the lender is the lender and the borrower is the borrower. Because in private lending, borrowers and borrowers are often closely related, such as relatives or friends. When borrowing money, it is easy to write the daily customary appellations as IOUs, such as "Zhang Shu" and "Li Jie"; Write the borrower as "third brother" or "fourth sister" In case the borrower fails to repay the loan, the lender will often be rejected by the court because of unclear creditor's rights and debts. In real life, such disputes also occur from time to time. Therefore, the borrower and the name on the borrower's ID card should be written on the IOU to clarify the actual borrower. This conventional title of "third brother" and "fourth sister" is really not enough.
3. There is actually the signature of the "gunman" on the debit note-be careful of "Gui Li"
"I borrowed money from myself, but I didn't write a note"-such a dispute was solved by criminal investigation in Nanjing a few days ago. Wang Xiangzhang borrowed 1 10,000 yuan. When Zhang asked Wang to write a loan, Wang just got a call and left the scene. Soon, Wang came back and handed a written IOU to Zhang. Zhang saw that the amount of the loan was correct, the signature was also the borrower's name, and the bill seemed to be in order, so he gave 10000 yuan to Wang. After Zhang asked Wang for money, Wang did not recognize it. Zhang had no choice but to sue the people's court with an "IOU". Because Wang denied the fact of the loan and the loan was written by him, the court entrusted the relevant department to conduct handwriting identification, but after the identification, it was confirmed that the loan was not what he did.
Author: Wang. The court rejected Zhang's claim according to the appraisal conclusion. After Zhang protested the case to the procuratorate, the people's procuratorate considered it necessary to be investigated by the public security organ after examination. After investigation, Wang admitted that the IOUs were true and others wrote them by imitating their own handwriting. This "gunman" eventually led to the loss of Zhang's civil lawsuit.
4. Typing IOUs is not just signing-IOUs should be written by yourself.
In the last case, the negligence of the lender led to a dispute caused by a false signature, and in the loan relationship, the borrower also had legal risks. This example is an example of this. A year ago, the author represented such a case: Ding borrowed 12000 yuan from Zhou, and the loan amount written by Zhou himself was 12000 yuan (in figures, this loan was not written in capital). Seeing that the loan amount was correct, Ding signed the loan note. The following week, he sued for repayment of the loan120,000 yuan with an iou signed by Ding. Ding proposed that the original statement amount was 12000 yuan instead of 120000 yuan, but it suffered from no other evidence and lost the first trial. After accepting the entrustment of the second trial, the author obtained other indirect evidence through various efforts. According to the new evidence and common sense of life, the judge of second instance concluded that Zhou left an appropriate blank after 12000 and added "0" after Ding's signature. Although this case has been changed according to law, the parties cry every time they think about the time and energy spent on this case and the cost of handling the case.
This case can also provide readers with another important hint: if the loan amount agreed by both parties is not in lowercase but in uppercase or lowercase, such disputes may be avoided, and the disputes caused by the capitalization of the loan amount are common disputes in loan disputes, which must attract readers' attention.
5. It is valid in black and white-the interest rate agreed by both parties should be written on the "IOU".
Li borrowed 10000 yuan from Sun, and both parties verbally agreed that the interest rate was 2% per annum. Li wrote on the loan slip: I borrow Sun cash 10000 yuan today. Considering that the two sides are acquaintances, Sun did not insist on writing interest on the IOUs. Later, Sun sued for repayment of principal and interest on the grounds of the loan issued by Li. After hearing the case, the people's court rejected Sun's claim for interest litigation according to Article 2 1 1 of the Contract Law, "If there is no agreement or unclear agreement on interest payment in the loan contract between natural persons, it shall be deemed that interest will not be paid".
For this reason, interest should be clearly stipulated in the "IOU", but it should be noted that the interest agreement between natural persons should not exceed 4 times the bank loan interest rate in the same period, and the excess will not be protected.
According to Article 6 of the Opinions of People's Courts on Handling Lending Cases issued by 199 1, the interest rate of private lending can be appropriately higher than that of banks, and local people's courts can specifically grasp it according to the actual situation in the region, but the maximum interest rate shall not exceed 4 times (including interest rate) of similar loans from banks. Beyond this limit, the excess interest will not be protected.
From the above analysis, we can see that the "two-point interest rate" and "three-point interest rate" set up by the people have obviously exceeded the interest rate of similar loans of banks by four times, and the excess interest is not protected by law.
6. The word "Huan" is not simple-beware of the ambiguity between Chinese characters and sentences.
Li borrowed 50,000 yuan from Wu Mou and issued an IOU for Wu Mou. Two months later, Li returned 5,000 yuan, so he asked Wu Mou to tear up the original loan. He issued a new loan for Wu Mou: "Li borrowed 50,000 yuan from Wu Mou and still owes 5,000 yuan." The word "Huan" here can be understood as "Huan" as well as "Hai" and "Shang". The resulting dispute is very unfavorable to the lender. Finally, although Wu's rights have been protected, the case is tortuous and still appears in major textbooks as a classic case.
In June 2007, Zhongmou borrowed 60,000 yuan from Huang due to the turnover of business funds, and issued a debit note with the content of "Borrowing 60,000 yuan from Huang today" and signed and borrowed time. On June 30 of the same year, Zhongmou returned 20,000 yuan, but Huang did not issue a receipt when repaying. Zhongmou only marked "20,000 yuan on June 30" after the loan amount. Because the balance was not paid back for a long time, Huang appealed to the court, claiming that Zhong had not paid back a penny so far, and that the "repayment of 20,000 yuan on June 30" in the loan was the repayment plan agreed by both parties, so he requested the court to order Zhong to repay the loan of 60,000 yuan. In this regard, although Zhongmou argued that he had returned 20,000 yuan, he felt remorse because the contents of the loan were vague and there was no other evidence to support it. So he found Huang's statement privately and recorded the conversation at that time. The recording clearly confirmed the fact of repayment and submitted it to the court as the key evidence to find out the facts of the case.
After hearing the case, the court held that the recorded materials can be used as evidence to finalize the case according to law as long as they are obtained in a way that does not infringe upon the legitimate rights and interests of others or violate the prohibitive provisions of the law. The recorded data provided by Zhong did not violate the relevant provisions of the law. Although it was "secretly recorded", it was still valid evidence. In the end, the local court made the above judgment in court according to the recording. However, it is not difficult to imagine that if there is no recorded evidence, the case will be another protracted marathon war.
7. From a horizontal perspective, determining the repayment period has advantages and disadvantages.
As we all know, disputes arising from loans are protected by law within the two-year statute of limitations. When you write an IOU, should you set a specific repayment period? This issue has formed a relatively consistent view in practice: whether it is stated or not, there are advantages and disadvantages in specific issues. Article 206 of China's Contract Law stipulates that the borrower shall repay the loan within the agreed time limit. If the term of the loan is not agreed or clearly agreed, and cannot be determined according to the provisions of Article 61 of this Law, the borrower may return it at any time; The lender may urge the borrower to return it within a reasonable period of time. Therefore, in practice, it should be noted that the limitation of action is two years from the date of the specified repayment period, so if the borrower fails to repay within the agreed time limit, the lender must remember to repay in advance.
Claim rights in time within two years after the expiration of the specified time limit. Lenders have the right to demand repayment at any time without specifying the repayment period. At the same time, the borrower should also pay attention to that if the repayment period is agreed in the IOU, the loan should be returned within the prescribed time limit to avoid disputes; And if there is no agreed loan term, you can repay the loan at any time. So our conclusion is: whether the loan term is clear or not depends on the specific situation.
8. If you have an iou, you may not win the lawsuit-remember the renewal period.
We mentioned the question of whether the repayment period in the IOU is clear, so the following case tells you that it is very critical to supplement and determine the prescription evidence, which is also a prominent problem in private lending.
In August 2006, Boss Zhang's cousin Wang came to borrow money from him, saying that he wanted to open a shop and do some small business. The boss Zhang Xiangwang borrowed 20,000 yuan and agreed in writing to return it within one year. In a blink of an eye, the one-year deadline has arrived. Boss Zhang thought that Wang's business was still in its infancy and the two sides were relatives, so he didn't rush it. In July 2008, Boss Zhang had to ask Wang for it, but Wang said that his business had just started and he was unable to repay, and vowed to postpone the repayment period by one year and definitely return it. In desperation, Zhang Can, the boss, could only agree, but unfortunately, the two sides did not produce any written materials. In a blink of an eye, a year passed. When boss Zhang went to ask for money again, Wang refused to pay it back, saying it was overdue. Boss Zhang wants the author to sue Wang. After understanding the situation, the author clearly told boss Zhang that a lawsuit may not win. Why? Because he has missed the deadline for winning the case.
Therefore, when the lender encounters the above problems, it is necessary to form a written clause on the issue of deferred repayment, which has the purpose of interrupting the limitation of action, otherwise you may not be able to win the lawsuit even if you hold the IOU.
9. Lending also depends on the purpose-illegal lending is not protected by law.
Boss Zhang above is holding an iou, because the prescription is scratching his head, and boss Zhong is also holding an iou, asking him not to refund the money. The reason is that his loan relationship with the lender is not protected by law. This is a real case 10 years ago. At the beginning of a certain year, Mr. Zhong's old classmate Xie Mou came to the door and borrowed 65,438+10,000 yuan from Mr. Zhong. At that time, Boss Zhong asked Xie what project he was going to invest in by borrowing money. Xie said he wanted to open a gambling game hall. Boss Zhong thinks that although it is profitable, it also has risks, so he doesn't agree. Later, Xie visited him several times and promised that no matter what happened, it would not affect the performance of the debt. Under the soft touch of Xie, Boss Zhong still lent him the money, and indicated on the IOU that all the responsibilities were borne by Xie himself. As a result, Xie's game room was sealed up by the public security organs not long after its opening, and Xie was also punished. This time, the boss panicked and went to the door to collect debts every three days. Xie always said that he was temporarily unable to repay it and gave him a period of time. After careful consideration, Boss Zhong took Xie to court, but the court not only failed to support Boss Zhong's claim, but also fined Boss Zhong. In fact, many people have such a misunderstanding that the purpose of borrowing will not affect repayment. In other words, no matter whether the borrower borrows money for legal business or illegal activities, the lender can claim the creditor's rights from him, because "paying off debts" is a matter of course. This concept is incorrect. Article 11 of the Supreme People's Court's Opinions on the Trial of Lending Cases by People's Courts points out that the lender knows that the borrower is borrowing money for illegal activities, and its lending relationship is not protected. Both parties can also be reprimanded for their illegal lending, and the property and illegal income obtained from their illegal activities can be confiscated, and they can be fined and detained according to law. You see, Boss Zhong is really "losing his wife and losing his soldiers", so when borrowing money, you must see clearly the purpose of borrowing money. Another common borrowing in life is borrowing money at the gambling table. Imagine the above situation, you should think twice before you act.
10, be careful to keep other evidence-efforts other than loans are equally important.
In private lending, generally speaking, as long as there are formal IOUs, the lending relationship can generally be determined. However, in real life, many borrowers refuse to cooperate in court, so such loan disputes can only be tried in absentia. However, in practice, cases tried in absentia have more and more strict requirements for the plaintiff to provide evidence, which is also the basis for the court to even verify the loans of both parties.
Department, such as the purpose of the loan, and more importantly, the court has confirmed whether the payment has been delivered. Therefore, for large loans, you can consider bank transfer, and keep records of transfer and entry, so as to provide evidence after disputes. In addition, you can ask a third person to be a witness and a guarantor. When you write an IOU, these jobs can better keep the evidence, and you can sit back and relax whether you are absent or not.
1 1. I have returned your cheese-you have to borrow a note after repayment.
Wang He and Li have been good friends for many years. In September 2008, Wang borrowed 30,000 yuan from Li due to financial constraints. At that time, Wang gave Li an iou and set a repayment date. 165438+1On October 5th, Wang invited Li and his cousin Zhang to have dinner together. At the dinner table, Wang returned the 30,000 yuan owed to Li in front of Zhang. Because Li didn't bring the loan at that time, Wang didn't get the loan back, and later he didn't ask Li for the loan. Considering that he and Li have been friends for many years, Wang understands and trusts each other. At the time of repayment, Zhang was present as a witness, and Li would not feel guilty because of 30,000 yuan.
What Wang never imagined was that in May this year, Li actually sued the court with the loan that Wang had not recovered, demanding that Wang repay the loan of 30,000 yuan. A few days ago, the court held that the testimony of witnesses was not as effective as documentary evidence, and Zhang was related to Wang, so Zhang's testimony was not accepted. According to the loan provided by Li, the court ordered Wang to repay Li's loan of 30 thousand yuan.
Even between relatives and friends, if something similar to IOUs happens, you must take back the IOUs you typed when you borrowed money. If you can't get the loan back at that time, you can postpone the repayment, or ask the other party to issue a receipt detailing the receipt. In the future, you can also get back the IOUs in time to avoid unnecessary troubles and losses. In this article, Wang Can is described as a mute who eats Rhizoma Coptidis. He is suffering.
Second, IOUs: In fact, you are also very simple-how to make IOUs without failure.
Through the above analysis, we can have a preliminary understanding of the problems easily existing in private lending. So, what parts should a formal IOU contain? How to effectively avoid disputes and plan ahead? Then the following tips will be crucial:
1. Name: Be careful to write "IOU" instead of "IOU" or "receipt";
2. The parties: clearly write the legal full names of the borrower and the lender, and indicate the ID number. Never write "third brother" or "fourth sister";
3. Amount: The loan amount should be clearly written, including the amount in words and figures, and both parties should be consistent. In case of any inconsistency, amount in words shall prevail according to law;
4. Time: generally, the corresponding term related to the loan should be clearly written, including the time of the loan and a clear repayment period; It should be noted here that whether the prescription is clear is very important for the calculation of the prescription of action;
5. Interest: If both parties agree on the loan interest, it should be clearly written on the loan slip and ensure that the agreed interest rate does not violate the law.
6. Signature: The borrower shall personally sign and press the fingerprint.
7. Guarantee: In order to maintain the security of the loan, the other party may provide corresponding guarantee, such as providing mortgage or guarantor. Even if no guarantee is provided, we can consider having two unrelated third parties sign the IOUs as witnesses.
8. Language and writing: Be sure to write clearly when making a loan. At the same time, in order to avoid ambiguity, you must consider whether words and sentences are ambiguous.
Article source: Zhonggu French Open (free legal advice, just go to Zhonggu French Open)