In recent years, the loan disputes between citizens in Haidong area of Qinghai Province are on the rise. Since 20 19, Haidong two-level courts * * * have accepted 5999 private lending disputes in the first instance and concluded 5474 cases, accounting for 14. 18% of the total number of civil cases. According to reports, there are some problems in such cases, such as irregular forms of lending, prominent involvement of private enterprises in private lending, frequent cases of "usury", prominent cross-cutting problems between criminal and civil cases, and new cases of online platform lending.
In view of these circumstances, Haidong Court adheres to the judicial concept of "safeguarding people's livelihood and property rights and serving economic development", actively conforms to the new changes and new regulations in the judicial field of private lending, and gives full play to the evaluation and guidance function of judicial trials in combination with the diversified financing needs of society, so as to provide high-quality and efficient judicial services and guarantees for the healthy operation of the private financing market. In this issue, several typical cases of private lending tried by our hospital are selected, and the way of case interpretation is adopted to remind the general public that lending is risky and should pay attention to protecting their own property safety.
Tripartite loan repayment application
It is not enough to rely solely on the evidence of IOUs.
2065438+In July 2009, Majia borrowed 90,000 yuan from Aunt Ma and issued an IOU. Because the Third Cavalry had previously owed Ma Yi 654.38+million yuan, after consultation, Ma Bing directly transferred 654.38+million yuan to Ma Jia, and verbally agreed on a two-month repayment period. After the arrears expired, Ma Yijing refused to repay, and Ma Yijing repeatedly asked for no results, so he sued Ma Jia to the court.
The court held that the evidence provided by Ma Yi could only prove that there was an IOU between the borrower and the lender, but the IOU was an isolated document, which could not prove that Ma Jia had the willingness to borrow from Ma Yi, that both parties agreed to borrow, and that the defendant had received the money. Moreover, the defendant did not recognize this, so it was impossible to confirm the existence of a loan contract relationship between the two parties. Ma Yi should bear the legal consequences without proof, so he dismissed Ma Yi's claim according to law.
Wang Xinyu, president of the First People's Court of Haidong Intermediate People's Court, said that Ma Yi, the litigant in this case, lost the case, indicating that the legal awareness of private lenders is still weak, the legal procedures for transactions are incomplete, and the lending behavior is secretive, which is likely to lead to legal disputes. In practice, when a lender files a lawsuit, it often only takes debt vouchers such as IOUs or transfer vouchers of financial institutions as evidence to prove that a loan relationship has occurred. For example, the borrower argues that the loan has been repaid, or the transfer is to repay the previous loan or other debts of both parties. At this time, the burden of proof may arise, rather than simply identifying the loan relationship and the content of the loan relationship that has occurred according to the loan, receipt and loan.
Wang Xinyu reminded that the parties should establish evidence awareness, attach importance to evidence preservation, try to sign a written loan agreement with the borrower, keep the bank transfer voucher, and ask the borrower to issue a receipt after the transfer. If the lender can only provide a loan agreement or an iou in the lawsuit, it does not mean that it will lose the case. At this time, the lender should actively collect and provide other evidence to prove the establishment of the loan relationship, such as relevant witness testimony, electronic transfer vouchers, etc. To avoid the situation that no evidence can be provided in the event of a dispute.
Transfer millions during love.
In fact, the loan was paid back after the breakup.
Chao is a boyfriend and girlfriend. During the period of love, Zou paid Yuemou Gundam1120,000 yuan through bank transfer, Alipay, WeChat and credit card. Since then, Yue has paid back some money one after another, leaving 450,000 unpaid.
After the conflict between the two sides, Zou repeatedly went to Yue's home to ask for arrears. Yue finally issued an iou, but said that he and Zou were boyfriend and girlfriend. The transfer between the two parties is a gift during love, and there is no meaning of borrowing money. Zou appealed to the court for this and demanded that Yue repay the loan of more than 450,000 yuan.
Wang Xinyu introduced that during the period of love, for the need of expressing feelings, it is easy for both parties to make such indiscriminate situations as free gifts, * * expenditures and capital loans. Whether it constitutes a loan relationship should be comprehensively judged from the aspects of payment purpose and loan agreement according to daily life experience. Small payments are mostly general gifts. When the relationship is terminated, the donor cannot ask for it back. However, for a large amount of money gift, the parties often pay for the purpose of marriage, which can be regarded as a gift with revocation conditions. When the two parties cannot get married, the donor's gift purpose cannot be realized, and the donor constitutes unjust enrichment and should be returned. In addition, if one party gives cash to the other party, and both parties explicitly agree to borrow money at the time of payment, or both parties settle accounts according to the loan relationship after breaking up, which constitutes a loan contract relationship, it shall be handled according to the loan contract relationship.
Withholding loan interest
The principal is paid according to the actual amount.
Zhu and Sue are friends. 2065438+On February 4, 2008, Su borrowed 500,000 yuan from Zhu due to the difficulty of capital turnover, and the agreed interest was 85,000 yuan. On the same day, Zhu actually transferred RMB 410.5 million to Su through Qinghai Rural Commercial Bank, of which RMB 85,000 was directly deducted as interest. Su borrowed 500,000 yuan from Zhu, with a loan term of 20 18, from February 14, 2004 to May 13.
After the expiration of the loan period, Sue failed to repay the loan on time. Zhu sued the court in August, 20021year, demanding that Sue repay the remaining loan of 330,000 yuan and interest of 49,638 yuan, totaling 379,638 yuan, and bear the litigation costs of this case.
The court found that Su had repaid the loan of 6.5438+0.8 million yuan to Zhu, and the remaining 235,000 yuan was still unpaid according to the actual amount of the loan principal. During the trial, the judge presided over the mediation, and reached a mediation agreement that Su paid Zhu 235,000 yuan, voluntarily assumed interest of 35,000 yuan, totaling 270,000 yuan, and repaid the principal and interest on time on the agreed due date.
Wang Xinyu said that this behavior of deducting loan interest from the principal in advance is also called "beheading interest". "beheading interest" exists in a large number of private loans, but it is strictly prohibited by Chinese laws and regulations. In this case, the loan amount agreed by both parties is 500,000 yuan, but Zhu has deducted the interest of 85,000 yuan in advance and actually paid the loan principal of 4 1.5 million yuan. Therefore, according to the above provisions, the loan principal in this case should be confirmed as 465,438+05,000 yuan.
Knowing that it is illegal to provide loans.
Gambling debts are not protected by law.
protect
Dou and Ji are villagers from different villages in the same town, and Dou opened a canteen in the village. 202 1 1 6, Doumou appealed to the court to ask Jimou to repay the loan 108000 yuan.
During the trial, Dou submitted a debit note and a photo to prove the fact that Ji borrowed money from him in his canteen. The contents of the loan note stated: "I borrowed RMB 63,000 from Doumou today and paid it off on October 30, 2065,438+18. If it is not returned on time, the default will be calculated at 100 yuan per day. " The IOU also states: "2065438+2008+65438+borrowed again on June 7, 2008, with a total loan amount of 106000 yuan, which will be repaid in one lump sum. 1October 26th 10, RMB 2,000.00 Yuan is borrowed, with the amount of RMB108,000.00 Yuan only. Borrower: Ji Mou, date of loan: 2065438+08101October 6 ". There is Ji's signature and seal on the debit note.
The court found out that Jimou was suspected of gambling. According to the criminal rulings of the first-instance court criminal judgment and the second-instance court, it can be concluded that Doumou lent Jimou gambling money 108000 yuan.
After trial, the court held that the analysis of the relationship between Dou and Ji, the amount of loan, the delivery time of loan funds and other factors did not conform to social common sense and trading habits. Dou knew that Ji borrowed money for gambling and still provided funds for Ji many times. Although Dou showed photos to prove that the cash was paid on the day when the IOU was issued, that is, 20 18 10.06, upon examination, the original photo time of warehousing was 20 1 10.08, which was inconsistent with the description. At the same time, the time and content of the IOUs are unclear, and the time is inverted. In the case of Ji's objection to the delivery of funds, Dou failed to provide other valid evidence to prove the establishment of a legal loan relationship between the two parties. Finally, the court rejected Dou's claim according to law.
Wang Xinyu said that according to the law, gambling debts are not protected by law. Lenders lend money knowing or should know that the money they lend will be used for gambling, drug money, whoring and other illegal and criminal activities. This kind of lending behavior is actually an illegal or criminal helping behavior, which will definitely be negatively evaluated by the law. In real life, there are even professional lenders who specialize in lending and gambling. They often lend the principal at high interest rates, and when it is difficult to collect the principal and interest, they will take violent measures to collect them. In this regard, the Opinions on Handling Criminal Cases of Illegal Lending issued by the Ministry of Education and institutions of higher learning clearly defines the scope of the crime of illegal lending, and the crime of illegal debt collection is separately punished as a special crime in Amendment (11) of the Criminal Law.
Relevant provisions of the civil code
Article 670 Interest on a loan shall not be deducted from the principal in advance. If the interest is deducted from the principal in advance, the loan will be repaid according to the actual loan amount and the interest will be calculated.
Article 676 If the borrower fails to repay the loan within the agreed time limit, it shall pay the overdue interest in accordance with the agreement or the relevant provisions of the state.
Article 677 Where the borrower repays the loan in advance, unless otherwise agreed by the parties, the interest shall be calculated according to the actual loan period.
Article 680 If the loan contract does not stipulate the payment of interest, it shall be deemed to have no interest.
If the loan contract does not specify the payment method of interest, and the parties cannot reach a supplementary agreement, the interest shall be determined according to the local or the parties' trading methods, trading habits, market interest rates and other factors; Loans between natural persons are regarded as interest-free.
Opinions on Several Issues Concerning Handling Criminal Cases of Illegal Lending
1. Whoever, in violation of state regulations, regularly gives loans to unspecified social objects for the purpose of making profits without the approval of the regulatory authorities or beyond the scope of business, thus disrupting the order of the financial market, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Item (4) of Article 225 of the Criminal Law.
Lao Hu's comments
Private lending is flexible and fast, and the procedures are simple, which can play a good role in solving the difficulties in time for those in urgent need of financial support. However, in real life, due to problems such as hidden transactions and difficult risk monitoring, disputes occur frequently, and some private lending behaviors even violate the criminal law, which constitutes a crime.
In order to foster strengths and avoid weaknesses, seek advantages and avoid disadvantages, and promote the healthy development of private lending, both borrowers and lenders must first understand and abide by the relevant laws and regulations on private lending, especially the mandatory provisions on private lending in the Civil Code, and avoid "beheading" and "usury". At the same time, borrowers should also carefully understand the purpose of loans and resolutely put an end to illegal and criminal acts using loans.
At the same time, the borrower and the borrower should sign a loan agreement in accordance with the law, clarifying the rights and obligations of both parties. According to the law, the loan agreement needs to specify the borrower and the borrower's name, loan type, currency, amount, time, term, purpose, interest rate, repayment method, guarantor and liability for breach of contract. , and signed and signed. At the same time, the loan agreement should be legal, standardized and clear from name to content. Only in this way can we eliminate hidden dangers and leave no gap for disputes.
Lending is risky and everyone needs to be cautious. Only when both borrowers and borrowers are honest can private lending be stable and far-reaching and reduce disputes.
Hu Yong
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