Brief case:
20 10,165438+10.5, Sun Kai signed a mortgage loan contract with Li Hong and Shi Junping, stipulating that Li Hong would borrow/kloc-0.50 million yuan from Sun Kai, and Shi Junping would provide mortgage guarantee with his own property. The last remark of the contract is "subject to the contents recorded in the loan receipt".
2010165438+1016, Li Hong and Shi Junping issued an iou to Sun Kai, indicating the mortgage loan contract number. The borrower: Li Hong; Lender: Sun Kai; Loan amount, loan interest rate, term, etc. Li Hong and Shi Junping signed at the borrower's office. On the same day, Sun Kai transferred 6,543,800 yuan to Li Hong.
201116. Sun Kai and Li Hong signed the Mortgage Loan Contract Extension Agreement, which agreed to extend the above loan for two months and increase the interest to 3% per month.
20 1 1 15 In March, Sun Kai and Li Hong signed the Mortgage Contract Extension Agreement again, which extended the above loan by 12 months.
On April 8th, 20 12, Li Hong issued a repayment plan to Sun Kai, and promised to repay the loan of100000 yuan before May of 12.
Qingdao Intermediate People's Court (20 12) Qing Min Si Chu ZiNo. 10. 152 the first-instance judgment held that:
Although the mortgage loan contract involved in this case stated that the borrower was Li Hong, Shi Junping only signed the contract as the mortgagor, and the loan of 6,543,800 yuan was also paid to Li Hong, but the last page of the mortgage loan contract clearly stated that "the contents recorded in the loan IOU shall prevail", so Shi Junping signed the borrower's name on the loan IOU, indicating that Shi Junping voluntarily became the borrower.
Based on the above facts and reasons, we support Sun Kai's claim that Shi Junping should share the repayment responsibility with the borrower.
Shandong Higher People's Court (20 14) Lu Minyi Zhongzi No.37 second-instance judgment holds that:
There is a clear agreement on the creditor's name, loan time and loan interest rate in the loan receipt, which is mutually confirmed with the remarks of the mortgage loan contract involved, that is, "the contents recorded in the loan receipt shall prevail", indicating that Shi Junping is the borrower. Since Shi Junping's identity changed from guarantor to borrower after the loan receipt was signed, according to the extension agreement of the mortgage loan contract involved, Shi Junping advocated that he should be the mortgage guarantor.
The Supreme People's Court (20 15) Min TiziNo. 149 retrial judgment holds that:
As can be seen from the ascertained facts, according to the mortgage loan contract, the true meaning of the three parties is that Sun Kai is the lender, Li Hong is the borrower, and Shi Junping is the mortgagor, with their respective properties as collateral.
The subsequent "IOU" once again defined the borrower Li Hong and the lender Sun Kai in the head.
Although Shi Junping signed the borrower's name, and in the last remark of the mortgage loan, "the contents recorded in the loan receipt shall prevail", it can only show that the specific agreement of the three parties in the mortgage loan contract is the concretization of creditor's rights and debts, that is, the specific amount, interest rate and term of Li Hong's loan from Sun Kai in the mortgage loan contract shall prevail in the loan receipt, not in the position of the contract subject.
If, according to the judgments of the first and second instance, Shi Junping's identity has changed from the mortgagor to the borrower since the signing of the loan receipt, the mortgage loan contract signed by the three parties should be replaced by the loan receipt, and the relevant mortgage agreement has no legal effect, which obviously goes against the true intention of the parties.
In addition, after the mortgage loan contract and the loan receipt were signed, Sun Kai's loan was not delivered to Shi Junping, but paid directly to Li Hong's account; During the performance of the contract, Li Hong also paid interest to Sun Kai. Moreover, the loan extension and repayment plan are between Li Hong and Sun Kai, and Shi Junping did not participate.
It can be seen that the actual performance subject of the borrower in the IOU is Li Hong, not Shi Junping, and the subject that should bear the repayment responsibility is Li Hong, which does not support Sun Kai's claim that Shi Junping should bear the repayment responsibility with the borrower as * * *.