Case 1
Zhang San and Li Si are good friends in business. Zhang San proposed to Li Si the need for business capital turnover, and issued a debit note to Li Si, which read: "Today, Li Si is borrowed RMB 65,438+10,000. Borrower: Zhang San × Year× Month× Day. " A year later, Zhang San paid Li Si 70,000 yuan because of his good business, and Zhang San added 70,000 yuan to the original IOU. The relationship between the latter two deteriorated due to business reasons. Li Si sued the court and demanded that Zhang San return the arrears of 70,000 yuan. Zhang San was very angry, thinking that I only owe you 30,000 yuan, why should I ask for 70,000 yuan? See what evidence you can produce at the trial. The evidence presented by Li Si is an iou issued by Zhang San, which Zhang San thinks is "the sea owes 70,000 yuan" and Zhang San thinks is "Huan owes 70,000 yuan", so the two sides have an argument.
After trial, the court held that:
This is a loan contract dispute, and the loan contract relationship between the two parties is legal and valid. In this case, the IOU is the only evidence of the loan contract relationship between the two parties, and the focus of the dispute between the two parties lies in the repayment amount and the final debt amount.
The IOU was written by the defendant and held by the plaintiff to prove the debt relationship between the two parties. Because the content of the loan written by the defendant himself is unclear and the understanding is vague, the burden of proof for the true meaning of this sentence should be borne by the defendant. The defendant can't provide corresponding evidence to prove that the expression of his opinions is true in the lawsuit, so he should make an unfavorable explanation and determination.
Therefore, the court ruled that Zhang San returned Li Si 70,000 yuan.
Watch industry tourism
Chen Ming and Xia Hai are neighbors, and Xia Hai has opened a trading company. They often borrow money from Chen Ming for business needs. In two years, they borrowed 80,000 yuan five times, one of which was that Xia Hai personally wrote an IOU for 30,000 yuan. On other occasions, Xia Hai and Chen Ming will say hello in advance. Later, Chen Ming sent the money to the trading company, or the accountant of the trading company went to Chen Minggu to withdraw money.
Probably because of work habits, accountants don't write "debit note" when withdrawing money, sometimes they write "receipt: I received Chen Ming ×××× yuan today." ; Sometimes write a certificate "I received Chen Ming ××× Yuan today" and then the accountant signs and seals it. Chen Ming didn't think much. Anyway, it is enough to prove that he gave the money.
Later, Chen Ming sued Xia Hai for failing to repay Xia Hai many times, but Xia Hai only admitted to borrowing 30,000 yuan, and others refused to admit that it was a loan. It is said that Chen Ming's business dealings with a trading company are the money that Chen Ming should pay, and the trading company does not owe Chen Ming money.
After hearing the case, the court held that:
Among the evidences provided by Chen Ming, the 30,000 yuan IOU signed by Xia Hai is sufficient and the relationship between the two parties is clear, which should be supported. In addition, the contents of the evidence "certificate" and "receipt" provided did not mean to borrow money, and the defendant did not admit that it was a loan, which was collected by the trading company and not signed by the defendant. The plaintiff's claim that there is insufficient evidence of the loan relationship with the defendant is not supported.
Through the two cases introduced above, I believe that everyone has already felt that the loan relationship of "one loan and one return" is actually not simple. But as long as you pay attention, you can avoid the above situation. For example, when Zhang San paid back the money, he wrote clearly that "70,000 yuan has been paid, and 30,000 yuan is still owed", and pay attention to writing it between the content of the debt and the debtor's signature. To prevent it from being torn off. Or ask Li Si for a dozen receipts, and it won't hurt. In the latter case, Chen Mingru and "certificate" are different from "IOU", so it doesn't matter.
People often ask the author how to write an IOU, IOU and receipt. Now the author forms a simple text on related issues for your reference.
1. Do IOU, IOU and receipt mean the same thing?
◆ The meaning of IOU is very simple, that is, a written document that proves the occurrence of borrowing behavior. Generally speaking, a loan should be issued with an iou.
◆ "IOU" actually means owing money, which is no different from "IOU", but the reason why IOU owes money is borrowing. There are other reasons besides borrowing money, such as owing money or even gambling debts.
◆ The meaning of "received" is completely different. "Receiving" only refers to who receives money from whom, such as receiving loans and repayment. It only means "received money" and does not mean that the payee owes the payer money.
Lawyer reminds: When borrowing money, I suggest you distinguish between IOUs, IOUs and receipts, and use standardized IOUs.
Second, the contents of the loan should include
A valid IOU should generally include the loan content (i.e. loan amount, currency, etc.). ), lender's name, date, date. Here can provide a simple example of IOUs:
receipt for a loan
This is to certify that I have borrowed RMB (in words).
Borrower: ×××
X year x month x day
With the above conditions, it can basically become a binding IOU.
Lawyer reminds: The following clauses can be added on the basis of the above.
● It is best to provide a copy of ID card and ID number for the borrower's identity information.
Reason: First, you can check whether the borrower's signature is consistent with the signature on the loan, and second, you can avoid the trouble of safeguarding rights in the future. The general court will require a copy of the defendant's ID card to confirm the identity of the defendant.
● Interest includes the calculation method, interest rate and payment time of interest.
Reason: Interest can be agreed or not. But you can't claim interest without an agreement.
● Purpose of borrowing
Reasons: First, not all loans will be protected by law. Loans used for illegal activities shall be confiscated according to law. Therefore, the purpose of borrowing can be clearly defined in the IOU. 2. If the borrower uses the loan for purposes other than the agreed purpose, the lender may require the loan to be returned in advance.
● The guarantee method includes the scope of the secured creditor's rights and the guarantee period.
Reason: In order to ensure the safe recovery of the loan, mortgage, guarantor guarantee, pledge and other guarantee methods can be agreed. The scope of guarantee can be agreed as follows: "Including but not limited to: loan principal, interest, penalty interest, penalty interest and lawyer's fees paid by the lender to recover the money (x% of the payable amount). The guarantee period may be agreed from the date of loan to the date of repayment of loan principal and interest. Because according to the judicial interpretation of the guarantee law, if there is no agreement, the guarantor's guarantee period is six months from the due date of repayment. After this period, the guarantor will not bear the guarantee responsibility.
● Liability for breach of contract
Reason: In order to urge the borrower to repay the loan on time, the corresponding liability for breach of contract can be agreed. For example, it is agreed that the borrower and the guarantor will pay the principal, interest, penalty interest, legal fees (x% of the total amount payable) and other expenses paid by the lender to recover the money as agreed, and also bear the liquidated damages of y% of the total amount payable.
3. Do I have to write the loan by hand? Who wrote it?
This law has no restrictions. Handwriting, printing, writing by the lender, writing by the borrower and writing by others are all acceptable. The key is the borrower's personal signature.
Lawyer's suggestion: The borrower should write and sign the IOU in front of the lender.
Reason: 1. If only the signature is written by the borrower, and other contents are written by the lender or others, and the lender holds the loan, once the lender adds or changes some contents in the loan, it is difficult to judge whether it is added or changed later.
2. Whether it is printed or written by the lender or others, if the borrower does not write clearly when signing, or the borrower later denies that the signature was written by him, it is sometimes difficult to successfully identify two or three words as signed by the borrower when verifying the signature.
3. If the IOU is not written and signed by the borrower in front of the lender, it does not rule out the possibility that it is not signed by the borrower himself. If the borrower takes the opportunity to deny the debt, the consequences will be very serious.
Fourth, the standard format of IOUs.
IOU (I owe you)
By X, X, I still owe RMB (in words). According to this!
Debtor: XXX
X year x month x day
The writing of the IOU is the same as the IOU above, and the IOU is signed by the debtor in front of the creditor for the same reason as above.
The limitation of action of verb (verb's abbreviation) IOU.
The statute of limitations for IOUs is two years, just like other civil cases, but attention should be paid to when the statute of limitations begins.
1. If there is an agreed repayment time on the IOU, the limitation period is two years from the date when the repayment time expires.
2. If there is no agreed repayment time on the receipt, the lender may demand repayment from the borrower at any time, and the limitation of action shall be two years from the time when the lender claims the right. If the obligee claims the right again, the provision of interruption of limitation of action shall apply.
3, interrupt the start limit.
Before the expiration of the limitation period, if the lender claims repayment from the borrower or the borrower promises repayment, the limitation period will be interrupted and the two-year limitation period will be recalculated from this time. However, for the limitation interruption, the lender shall provide evidence, such as the written confirmation of the borrower. Even if it is true, I'm afraid I can't advocate the interruption of prescription. Therefore, it is not protected by law. In addition, if the lender fails to claim the rights within 20 years after the borrower issues the iou, the limitation of action will no longer start.
Six, the statute of limitations of IOUs
1. If the repayment period is specified in the IOU, the limitation period shall be calculated as two years from the date when the repayment period specified expires.
2. If the repayment period is not agreed, the limitation period is two years from the day after the debt is issued.
The creditor knows that the debtor's rights have been infringed when he issues the IOU without a time limit for performance (except that the payment time agreed in the written contract in previous economic exchanges is later than a certain date after the date of issuing the IOU), so the creditor should claim the rights to the people's court within two years from the date of issuing the IOU. The Supreme People's Court pointed out in his reply to the question "When should the limitation of action be counted when the debtor fails to perform his debts after the expiration of the agreed time limit" that "both parties originally agreed that the supplier should pay immediately after delivery, but the buyer had no money to pay after receiving the goods, and the supplier agreed to write down the arrears without repayment date. According to the provisions of Article 140 of the General Principles of Civil Law, it should be considered that the limitation of action is interrupted. If the supplier fails to claim rights after the interruption of the limitation of action, the limitation of action shall be recalculated from the day after the supplier receives the written arrears from the buyer. " The reply gave a clear answer to this.
3. Where the creditor claims rights within the limitation period of two years, the provision of interruption of the limitation period shall also apply, and the limitation period shall be recalculated from the date when the creditor claims rights. This is the same as an iou, as mentioned above.
Seven, private lending, arrears matters needing attention
1, with written evidence, pay attention to safekeeping.
According to Article 4 of the Supreme People's Court's Opinions on the Trial of Loan Cases by People's Courts, the people's courts shall require the plaintiff to provide written evidence when trying loan cases; If there is no written evidence, the necessary factual evidence shall be provided. A lawsuit that does not meet the above conditions shall be ruled inadmissible. It can be seen that it is necessary for both borrowers and lenders to write relevant written evidence. It is ok to borrow well. Once a dispute arises, there may be no way to defend rights.
Although evidence is not limited to written evidence, it is often difficult to find other evidence without written evidence.
2. The format should be standardized and clear.
It is suggested to use the standard format of IOUs, IOUs and receipts. A complete IOU mainly includes four elements: creditor, debtor, debt content and return time, of course, signature and time; The receipt should include five elements: payer, consignee, delivery content and delivery time. Formal written evidence (available in stores) can generally reflect the above contents, which is clear at a glance and the rights and obligations of both parties are very clear.
3. Matters needing attention in the form
When writing written evidence, there should be no blank lines between the lines, otherwise it is easy for the holder to add other contents; Don't write with ink that fades and discolors easily. It is best to use black ink or blue-black ink for pens, and black ink is also acceptable. If you write with a pencil, ballpoint pen or other easily faded ink, the handwriting will become blurred without being properly soaked or soaked in water, and it may also create opportunities for people with ulterior motives to alter it with chemicals.
4. The target and amount should be clearly written.
When borrowing money, paying back money, borrowing things and returning things, the amount and quantity should be clearly written, and it is best to use capital figures to prevent alteration and forgery. It's money and things. We should distinguish them, and don't be vague and confused. When it comes to numbers, it's best to use capital letters or both. Inconsistent case, spaces before numbers, inaccurate decimal point position, etc. In order to facilitate the holder to add or modify the number, this will lead to disputes.
5. The content should be clear.
Sentences cannot be sloppy and the order cannot be reversed, so there is a world of difference between "borrowing Zhang San" and "borrowing Zhang San"; Don't change the "debit note" and "receipt" to each other, and the related smearing will pave the way for disputes; Don't turn "IOU" into "IOU". Some enterprises issue "IOUs" to migrant workers, not the wages owed by the company. In this way, the word difference will instantly turn labor disputes into private lending disputes.
For example, Party A lent Party B RMB 654.38 million, and Party B wrote, "Today Party A has received RMB 654.38 million." In this way, it is very easy to cause controversy. The dispute lies in the word "receipt". The "receipt" can be understood as "Party B received a repayment of RMB 65,438+million from Party A" and "Party B received a loan of RMB 65,438+million from Party A". Unable to tell whether to borrow or repay, Party A was caught in a lawsuit.
Some scripts write "buy" as "sell", "receive" as "pay", and so on. Although it is only a word difference, it is extremely easy. The polyphonic word "Huan" often causes controversy, such as the case at the beginning. The word "Huan" here has two pronunciations, which can be understood as "Huan, Huan" and "Hai, Huan".
6. Pay special attention to signature and seal.
The signature should be based on the real name, and the alias, code name and homophonic name are not standardized. It is best to use the name on the ID card to avoid disputes. Others write written documents or signatures, and I only put a handprint on them, which is also easy to cause disputes. Some people are used to stamping, but the legal effect is not high. Anyone can carve a private seal without filing, but the handwriting has its own characteristics.
The unit shall indicate the name of the unit and affix its official seal. The seal of the company should be standardized, and it is best to affix the most effective official seal on the written evidence. If the seal is stamped with "special seal for administration of a company", "special seal for debt collection", "special seal for warehouse" or other small seals, pay close attention to prevent the other party from refusing to admit that they own these departmental seals and small seals.
Individuals and units should write their full names, not abbreviations, codes or aliases. For example, "I owe Mr. Zhang 2000 yuan for payment today"; For example, the reference to "Tianyi Company" in "Today owes Tianyi Company 380,000" is unknown.
When signing and sealing, all parties should be present to prevent being impersonated.
7, the time should be written clearly.
The time for issuing written evidence, exercising rights and performing obligations should be clear and definite. At the same time, we should pay attention to the skills of writing the year, month and date, and beware of being modified. For example, 1997 can be changed to 1999, and July can also be changed to February or September. Some serious parties have written down the date of signature and complied with the written provisions on the date of issuance of bills in the Basic Provisions on Correctly Filling in Bills and Settlement Vouchers, which is worth promoting. Once there is a dispute over undated written evidence, it is difficult to find out the truth and determine the limitation of action.
If there is an agreed time limit for performance, a lawsuit shall be brought to the people's court within two years from the date of expiration of the time limit for performance. If there is no suspension, interruption or extension of the limitation of action, the right to win the lawsuit will be lost.
8. Interest rates should be set.
"Contract Law" stipulates that: if the loan contract between natural persons has no agreement on interest or the agreement is unclear, it is deemed that interest is not paid. According to the relevant laws and regulations, the interest rate of private lending can be appropriately higher than the bank's interest rate, but it must not exceed 4 times (including interest rate) of the bank's loan interest rate for the same period. If it exceeds this limit, the interest on the excess part will not be protected, and the lender may not seek high interest on the principal. If the interest is included in the principal as compound interest, the excess interest will not be protected.
If the lender requires the borrower to pay overdue interest on the interest-free loans between citizens, or if the interest-free loans from time to time have not been repaid after being urged, the lender may calculate the interest with reference to the interest rate of similar loans from banks.
Therefore, in private lending, the agreement on interest should be cautious, and at the same time, it should comply with relevant laws and regulations. Therefore, in private lending, the agreement on interest must comply with the law and the agreement must be clear. Don't write down the standard of interest and interest collection just because you are a friend or relative.
Unclear interest rates are also prone to disputes. Such as Li IOU: "I owe Wang Mazi RMB 80,000 today, with interest of 2 cents, which will be paid off within 8 months". It is true to borrow money, but it is hard to say whether the agreed interest rate is 2 cents a month or 2 cents a month. There is a precedent in this case. Considering fairness, the court ordered Li Si to pay corresponding interest to Wang Mazi according to the bank loan interest rate for the same period.
Interest rate and interest are two different concepts. It is not appropriate to write the interest rate of 2 cents into interest of 2 cents, or interest of 0.2 cents, or interest of 0.2%. Interest rate is the ratio of interest to principal, mainly expressed as: 1) annual interest rate: expressed as "%"; 2) Monthly interest rate, expressed as "‰"; 3) Daily interest rate, expressed as "/ten thousand". When both banks and private borrowers agree on interest, the written statement should be ",and the bank loan interest rate is usually calculated on a monthly basis and expressed by" ‰ ". The interest rate of 2 points is 20‰ (that is, 2%) and the monthly interest rate is 5.6‰.
9, pay attention to carefully check the written evidence.
After writing the written evidence, both parties should carefully check it. If there are loopholes or errors, they should be corrected immediately. It is best to make a draft first and then copy it according to the final version. If necessary, you can ask a third person to weigh the words carefully, and don't sign or seal them in a muddle.
10, misunderstanding of loan guarantee
There are two main ways to guarantee: first, other creditable people provide guarantees for borrowers, which are usually called people's guarantees; Second, the borrower or others provide the corresponding property guarantee. There are usually two misunderstandings here:
1. Wrong reference and witness as guarantor.
In the loan relationship, the person who only plays the role of contact and introduction does not bear the guarantee responsibility. If the performance of the debt is guaranteed, it shall be recognized as a guarantor and bear the responsibility of guarantee. If there is a guarantor, you should sign the loan and list it as a guarantor. It is better to have a clear one.
2. mortgage should be registered, otherwise it may not work.
Borrowers often give real estate licenses to lenders as collateral. In fact, this is not the role of mortgage. If you use real estate as a mortgage, you should go to the housing management department for mortgage registration. Otherwise, only holding the real estate license is often ineffective, and the property owner can report the loss at any time.
1 1. The identity of the borrower should be clear.
This identity is clear. In addition to confirming the identity information of the borrower mentioned above, we should pay attention to another issue. Now many borrowers are engaged in business and self-supporting enterprises or companies. So is the borrower an individual or a company? If it is not clear, it may lead individuals and enterprises to shirk their repayment responsibilities and bring trouble to creditors to realize their claims.
Therefore, it is necessary to specify whether the borrower is an individual or an enterprise, if it is an individual. If it is an enterprise, it shall be stamped with the official seal of the enterprise and signed by the legal representative or responsible person or other authorized person of the enterprise.
12, keep the written evidence properly.
Pay attention to the integrity of written evidence. If there are missing corners or words in written evidence, the effectiveness of the evidence may be weakened. In order to safeguard their legitimate rights and interests, we should pay attention to the preservation of evidence, and generally keep the original and copy of written evidence. If the other party destroys the written evidence immediately after defrauding, it will lead to an unknown outcome. If the other party robs or violently robs written evidence and then tears it up to achieve the purpose of non-performance, the other party should be suspected of robbery and robbery. In this way, the case-handling personnel of the public security department can take notes immediately and prove the facts of written evidence. Stealing white bars may also be suspected of theft.
13, Special Points for Attention in Business Communication
The business process is unclear and easy to cause trouble. Usually the other party doesn't pay, we don't have complete written evidence, and there are no other price lists or price lists. After each batch of goods is delivered, written documents such as delivery note and acceptance note shall be filled in immediately, and the other party shall be required to sign and seal. After the goods are delivered, the settlement shall be made immediately. After all the money is settled, make a statement as soon as possible. If the remuneration cannot be paid on the spot, a new written document shall be written immediately after completion. At this time, remember to get back the receipts, IOUs and receipts that occurred before the settlement. If it can't be recovered for a while, it should be stated in the statement that "all written documents are invalid before this."
14. Disposal after repayment
Remember to get the IOUs and IOUs back when you pay back the money. Also check whether the written evidence was written by yourself at the beginning, pay special attention to this piece and put it away for destruction. I have encountered it. At that time, the parties did not pay attention to get a copy back, and later sued the court and decided to give the second money. Unfair!
If the creditor can't return the IOUs (IOUs) due to reasons such as temporary loss or loss, the repayment person should ask the creditor to issue repayment vouchers, such as receipts, to clarify the basic contents of the original IOUs (IOUs), and confirm the current repayment amount and time, as well as the intention to increase the debt repayment of both parties and the invalidation of the previous IOUs (that is, to indicate that the previous IOUs are invalid), so as to avoid leaving hidden dangers in the future. Even if it can't be settled in full, let the other party type the receipt and keep it properly.
After the borrower repays the loan, the lender once again claimed to repay the loan because he did not pay attention to the above-mentioned problems of recovering the loan or asking for repayment evidence. I hope everyone will take a warning.
The above content, I hope to help my friends.
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