civil judgment
(20 14) Min Min final word No.67
Appellant (plaintiff in the original trial) Chen Mingsheng, male,1born in August 1956, Han nationality, lives in Fuqing City, Fujian Province.
Appellee (defendant in the original trial) Ye Xiaoying, female,1born on August 20th, 966, Han nationality, living in Fuqing City, Fujian Province.
Authorized Agent: Chen Hua, lawyer of Fujian Far East Dacheng Law Firm.
Appellee (defendant in the original trial) Luo, male, born in1965 65438+1kloc-0/0, Han nationality, lives in Fuqing City, Fujian Province.
The appellant refused to accept the civil judgment of Fuzhou Intermediate People's Court (20 12) RongminchuziNo. 12 16 for the case of a private loan dispute with appellees Ye Xiaoying and Luo, and appealed to our court. After the court accepted the case, a collegiate bench was formed according to law and the trial was held in public. Appellant Chen Mingsheng and appellee Ye Xiaoying's entrusted agent Chen Hua attended the proceedings in court. Appellee Luo was legally summoned but did not appear in court to participate in the proceedings, so he was tried in absentia according to law. The case has now been closed.
The lawsuit in the first instance claimed that Ye Xiaoying and Luo Wei turned to borrowing111012 for the operating capital week, with an agreed monthly interest rate of 2.5%, a loan term of one year and interest of 339. Remit RMB 6,543,800,000 yuan into Luo's account through his son Chen's bank account, and pay RMB 654.38+0310,000 yuan in cash. After the loan expires, Ye Xiaoying and Luo failed to repay the loan, and requested Ye Xiaoying and Luo to repay the principal and interest of the loan within a time limit of14.7 million yuan, and pay the overdue repayment interest at the monthly interest rate of 2.5% from 20 12 and 13 to the repayment date.
Ye Xiaoying replied that (1) Ye Xiaoying never borrowed money from Luo, and he didn't know whether Luo borrowed money from him. Therefore, there is no borrowing fact between Ye Xiaoying, Luo and Li. (2) The authenticity of the "IOU" has not been confirmed. Even if the IOU is true, it doesn't mean that Chen Mingsheng has fulfilled the loan behavior, and there is no evidence to prove the loan amount. (3) Chen Mingsheng's claim that the loan principal is 1 13 1 ten thousand yuan is not true. There is no evidence to prove that Ye Xiaoying and Luo were lent cash 1, 3 1, 000 yuan. There is no agreed interest rate, so there is no interest. 1470,000 yuan is not composed of 1 13 1000 yuan plus interest of 3.39 million yuan. (4) Chen Mingsheng's claim that the agreed monthly interest rate is 2.5% is groundless. If you want to calculate the interest, the interest rate is more than four times that of the bank loan in the same period and should be adjusted. (5) There is no basis for Chen Mingsheng to calculate overdue repayment interest at a monthly interest rate of 2.5%.
Luo replied that he had no objection to the fact of the loan, but the loan amount was only 6.5438+million yuan, and the remaining 4.7 million yuan was high interest.
The original judgment recognized Ye Xiaoying and Luo as husband and wife. 201101012, Ye Xiaoying and Luo Xiang issued IOUs, which read: "We hereby borrow RMB fourteen million seven hundred thousand Yuan only." The IOUs have the signatures and handprints of Luo and Ye Xiaoying respectively. On the same day, his son Chen was entrusted to transfer RMB100,000 yuan to Luo's account through China bank account. In the original lawsuit, Chen Mingsheng said that of the 1 10000 yuan actually lent, except for 10000 yuan, 8 10000 yuan was accumulated from previous loans, and the remaining 500,000 yuan was lent one week before the receipt was issued.
The original judgment held that the 2011kloc-0/01000 IOUs issued by Ye Xiaoying and Luo proved the fact that Ye Xiaoying and Luo borrowed money from them. Although the IOU stated that the loan amount was 6,543.8+04.7 million yuan, Chen Mingsheng said that the actual loan amount was 654.38+065.438+0365.438+00000 yuan. In the indictment, he claimed to pay 654.38+0365.438+00000 yuan in cash, but in the trial, he claimed that 865.438+00000 yuan was a cumulative loan. Therefore, Ye Xiaoying and Luo should repay the remittance loan of 6,543,800 yuan; Chen Mingsheng's claim to repay another loan of 1, 3 1, 000 yuan is not supported. The loan term and repayment time are not specified in the IOU, and Chen Mingsheng can demand repayment at any time. Ye Xiaoying and Luo have no objection to the agreed interest rate of the loan in this case, but the interest rate agreed by both parties is not specified in the IOU, and there is a dispute between the borrower and the lender on whether there is an agreed interest rate, which cannot be proved. According to Article 8 of the Supreme People's Court's Opinions on the Trial of Loan Cases by People's Courts, the monthly loan interest rate in this case can be 2011. According to Articles 84, 90 and 108 of the General Principles of the Civil Law of People's Republic of China (PRC), Articles 206 and 211 of the Contract Law of People's Republic of China (PRC), Article 64 of the Civil Procedure Law of People's Republic of China (PRC) and Article 8 of the Opinions of the Supreme People's Court on People's Courts Handling Loan Cases, the judgment is: 1. Ye Xiaoying and Luo Ying shall repay the loan principal of RMB 6,543,800,000+with interest within 10 days from the effective date of this judgment (the interest starts from 2065.438+065.438+0.10.00 until the repayment date determined in this judgment, and is calculated at the bank's similar loan interest rate); Second, Chen Mingsheng's other claims were rejected.
After the verdict was pronounced in the original trial, Chen Mingsheng refused to accept it and appealed to our court.
The appellant Chen Mingsheng appealed that (1) the original judgment found that the loan amount was wrong. The actual loan amount should be11310,000 yuan, including the bank remittance of10,000 yuan on the day when the IOU was issued, the previous loan of 8 10/0,000 yuan and the previous loan of 500,000 yuan. 865,438+00,000 yuan and 500,000 yuan will be settled in cash when the IOUs are issued. There is no contradiction in the composition of the loan expressed by Chen Mingsheng in the court statement and the indictment. Ye Xiaoying and Luo advocated a high interest rate of 4.7 million yuan, but did not reasonably explain the calculation method of interest, which was contrary to common sense and should not be adopted. (2) The original judgment made an error in determining the interest rate. When borrowing money, both parties agreed on a monthly interest rate of 2.5%. Although it is not recorded in the IOU, the cash borrowed is 65,438+065,438+0,365,438+0,000 yuan plus one-year interest of 3,393,000 yuan, that is, * * * 65,438+0,470,000 yuan, which can be verified with the total amount borrowed in the IOU. Moreover, Luo has confirmed the existence of agreed interest in the original lawsuit, and Ye Xiaoying also believes that the interest rate is obviously high when it exceeds 4 times the bank loan interest rate in the same period, and should be adjusted. Therefore, the agreed monthly interest rate of 2.5% is an objective fact. The original judgment found that the loan interest was calculated incorrectly according to the loan interest rate of the same period on the grounds that both parties had disputes over the interest rate agreement. To sum up, the original judgment is requested to be revoked, and Ye Xiaoying and Luo Xiang are judged to pay the loan principal 1 13 10000 yuan and the interest (from June 20113 to the repayment date determined by the judgment, according to the same period of the bank. The litigation costs of the first and second trials of this case shall be borne by Ye Xiaoying and Luo.
Ye Xiaoying, the appellee, replied (1) that he had never borrowed money from Luo himself, and he didn't know whether Luo borrowed money from him. (2) The "IOU" only proves the intention of borrowing, and does not mean that the lender has fulfilled the lending behavior. Even if there is a loan, the evidence shows that the loan principal is only 6,543,800,000 yuan. There is no evidence to prove that Chen Mingsheng advocates another loan of 6,543,803/kloc-0,000,000 yuan, and the statement of cash loan is contradictory. The two sides did not explicitly agree that the monthly interest rate was 2.5%, so there was a logical error in Chen Mingsheng's method of offsetting the loan amount with interest. (3) Although Luo thinks that the interest rate of RMB 4.7 million in the IOUs is on the high side, it does not mean that both parties have a clear agreement on the interest rate. In the case that there is a dispute between the two parties on whether there is an agreement on the interest rate and the interest rate cannot be proved, the determination of the interest rate in the original judgment conforms to the provisions of Article 8 of the Supreme People's Court's Opinions on People's Courts' Trial of Lending Cases. (4) Ye Xiaoying did not admit that both parties had agreed interest rates in the original trial, but only said that if the monthly interest rate agreed by both parties was 2.5%, the agreed interest rate was more than four times that of the bank loan in the same period and should be adjusted. (5) Except RMB 6,543,800,000, the remaining RMB 4,700,000 is a loan that has not actually occurred and should not be directly recognized as interest. In this case, the borrower and the borrower did not agree on the loan interest rate, so it can only be calculated according to the bank loan interest rate for the same period. To sum up, I request to dismiss the appeal and uphold the original judgment.
Appellee Luo replied that the loan principal in this case was 6,543,800 yuan, and the loan return was 4.7 million yuan. Both parties have verbally agreed that the loan period is one year, and they are willing to repay the principal and interest as required.
After trial, it was found that both parties had no objection to the facts identified in the original judgment, which was confirmed by our court.
The focus of the dispute between the two parties in this case is as follows: 1. Determination of loan principal amount of both parties; Two, whether the loan agreement interest and interest rate calculation standard is controversial. According to the evidence, cross-examination and statements of both parties in the first and second instance, our hospital made the following analysis and determination.
I. Determination of the principal amount of the disputed loan
We believe that Heluo has no objection to the fact that the loan amount in the IOU consists of the loan principal and the interest payable for one year. As both Luo and Luo are parties to the loan relationship, it is confirmed that they are both * * *. Ye Xiaoying claims that the amount agreed in the IOU is the loan amount, but this claim is inconsistent with the meaning of Luo and Luo, and will not be adopted. In this case, there is a dispute over the actual amount of the loan, and Chen Mingsheng, as a lender, should bear the burden of proof for the amount of the loan. As the amount recorded in the IOU is the sum of the loan principal and the corresponding interest amount, according to the facts identified in the original judgment, on the day when the IOU was issued, a loan of RMB 6,543,800,000 was paid to Luo, and both parties have no objection to this fact, which is confirmed by our court. Ye Xiaoying believes that this is inconsistent with the fact that he didn't borrow money from Chen Mingsheng, and also contradicts his own statement, which is not accepted by our court. He claimed that he borrowed another cash of 65,438 yuan+0,365,438 yuan+0,000 yuan, but no other corresponding evidence was provided to prove it, and Ye Xiaoying and Luo refused to adopt it, so the court refused to adopt it, claiming that the loan principal was 65,438 yuan+0,365,438 yuan+0,000 yuan, and the court also refused to confirm it. We found that the loan to Ye Xiaoying and Luo was RMB 6,543,800,000, which should be repaid by Ye Xiaoying and Luo.
Two, about the loan interest and interest rate is up to standard.
Based on the above analysis, we believe that the expression of "I hereby borrow RMB fourteen million seven hundred thousand Yuan only" in the IOU in this case consists of the loan principal of RMB 6,543,800 Yuan and the corresponding one-year loan interest of RMB 4,700,000 Yuan. Luo advocates an annual interest rate of 47% and an annual interest rate of 30%. There is a dispute between the two parties on the amount of interest rate agreement, which is four times higher than the interest rate of similar loans of banks. According to the second paragraph of Article 8 of "Several Opinions of the Supreme People's Court on People's Courts Handling Loan Cases", "If both borrowers and borrowers have disputes over the agreed interest rate and cannot prove it, they can calculate the interest with reference to Article 6 of this opinion." Article 6 of this opinion stipulates: "The interest rate of private lending can be appropriately higher than the bank interest rate, 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 four times (including interest rate) of similar bank loans. If this limit is exceeded, the excess interest will not be protected. " Therefore, Ye Xiaoying and Luo should pay the loan interest at four times the interest rate of similar loans in the same period of the bank. Ye Xiaoying believes that there is no agreed interest and interest rate for the loan in this case, and the interest can only be calculated according to the bank's interest rate for similar loans in the same period, which is inconsistent with the facts and legal provisions and will not be adopted by our court.
To sum up, the original judgment made mistakes in determining the facts and applicable laws of the interest rate calculation standard, and our court corrected them according to law. Chen Mingsheng's appeal grounds are partly reasonable, and our court supports them. According to Article 84 of the General Principles of the Civil Law of People's Republic of China (PRC), Article 6 and Paragraph 2 of Article 8 of Several Opinions of the Supreme People's Court on People's Courts Handling Loan Cases, and Article 170, Paragraph 1, Item 2 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
1. Maintain the second item of the civil judgment of Fuzhou Intermediate People's Court (20 12) Rongminchuzi No.2. 12 16;
Two. The first item in the civil judgment of Fuzhou Intermediate People's Court (20 12) RongminchuziNo.16 is: Ye Xiaoying and Luo Ying should repay the loan principal 100000 yuan and interest (interest from 201650000 yuan) within 10 days from the effective date of this judgment.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC).
The court acceptance fee of the first instance of this case is 1 10000 yuan, which shall be borne by Ye Xiaoying and Luo, and the burden is 12600 yuan; The property preservation fee of 5,000 yuan shall be borne by Ye Xiaoying and Luo. The acceptance fee for the second-instance case is 44,400 yuan, of which 27,600 yuan is borne by Ye Xiaoying and Luo, and the burden is16,800 yuan.
This is the final judgment.
Presiding Judge Li Weimin
Acting Judge Cheng Guangyi
Acting Judge Chen Zhihui
20 14 April
Bookkeeper Lin Xia