First, how to determine the interest of private lending?
Some private lenders have agreed on their own interest, while others have not. What are the legal provisions in this regard? According to the general principles of China's civil law, the relevant judicial interpretations of the Supreme People's Court and the relevant provisions of the contract law, the specific situation should be divided into:
1. Where both parties agree on the interest rate in the loan contract or the IOU:
When calculating the interest, the interest will be calculated according to the interest rate agreed by both parties. The agreed interest rate can be higher than the bank interest rate, but the upper limit is limited by law, and the part exceeding the limit is invalid. The upper limit shall not exceed four times the interest rate of similar loans of banks. If this limit is exceeded, the excess interest will not be protected. In addition, the lender may not include interest in the principal to obtain high profits. If it is found that the creditor has included interest in the principal to calculate compound interest, it will not be protected. If the interest is deducted from the loan, the interest shall be calculated according to the actual loan amount.
2. There is no agreement or unclear agreement between the two parties in the loan contract or IOU, which leads to uncertainty:
According to Article 2 1 1 of China's Contract Law, if there is no agreement or unclear agreement on interest payment in the loan contract between natural persons, it is deemed that interest is not paid. That is, as long as there is no interest to be paid on the IOU or loan contract, the lender cannot demand to pay interest within the repayment period. And article 124 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that if there is a dispute between borrowers due to interest rate, and the agreement is unclear and cannot be proved, the interest can be calculated according to the bank's similar loan interest rate. Similarly, Article 8 of "Several Opinions of the Supreme People's Court on People's Courts Handling Lending Cases" stipulates that if there is a dispute between borrowers and lenders on whether there is an agreed interest rate and it cannot be proved, the interest can be calculated with reference to the interest rate of similar loans from banks.
Therefore, in actual cases, whether to pay interest or not, the court has discretion, and the judgment of whether to pay interest is based on law.
3. Clearly agreed interest-free loan:
If the borrower fails to repay the loan on schedule when there is an agreed repayment period, or fails to repay the loan after being urged by the lender, and the lender demands to pay interest after being urged, it shall be allowed, and the interest may be calculated with reference to the bank's similar loan interest rate.
Second, private lending mortgage matters needing attention
Private individual lending with real estate as collateral is becoming increasingly active, but disputes caused by private mortgage are also increasing, and several situations in private lending mortgage are worthy of attention.
1. According to the guarantee law, the mortgagor and the mortgagee shall sign a written mortgage contract. Private lenders and borrowers do not sign loan contracts when borrowing money, but only IOUs, the content of which is too simple. Taking the house as a mortgage, not signing a real estate mortgage contract, but verbally agreeing, is easy to cause disputes. Once a legal dispute occurs, it is difficult for the parties to prove their claims in law, and even if they go to court, it is sometimes difficult to safeguard their legitimate rights and interests.
2. The third person takes his own house as the debtor's loan guarantee and does not sign a mortgage contract. In practice, the third party provides guarantee for the debtor. In order to protect one's rights and restrain the debtor from fulfilling his obligations in time, the debtor is often required to provide counter-guarantee. In this case, it is necessary to sign not only a written mortgage contract, but also a written counter-guarantee contract to urge the debtor to repay in time and ensure that his house is not frozen and executed.
3, private lending parties to real estate mortgage guarantee, not to the housing management department for mortgage contract registration. Only the real estate license of one's own house is delivered to the creditor for pledge. According to China's "Guarantee Law", real estate mortgage shall be registered as collateral, and the mortgage contract shall take effect from the date of registration. Failure to register the mortgage may result in the mortgage being invalid. At the same time, because the registration is not in place, the housing management department has repeatedly found that in private personal loans, fake real estate licenses are made and delivered to creditors as guarantees.
4. Most private mortgage borrowers use their existing houses (many of which are unique houses) as collateral. This may lead to the invalidation of creditor's rights.
Therefore, experts suggest that the parties involved in private lending mortgage should fully investigate the borrower's credit, verify the borrower's housing situation, sign all legal documents, and register the corresponding mortgage contract with the housing management department to obtain other warrants.
To sum up, the determination of non-governmental lending interest can be divided into three situations: the interest rate is agreed by both parties in the loan contract or IOU, and the interest-free loan cannot be determined and clearly agreed by both parties in the loan contract or IOU. The above has introduced in detail how to determine the interest in these three cases, hoping to help you.