civil judgment
(2020) Min 0 103 Min 467 1
Plaintiff: She * *, male,1born in February 1977, Han nationality, living in Hanjiang District, Putian City, Fujian Province.
Defendant: China Ping An Property Insurance Co., Ltd., Fujian Branch, whose domicile is Units A, B and A, 7th Floor, Ping An Building, No.88 Wuyi Middle Road, Chating Street, Taijiang District, Fuzhou City, Fujian Province, with unified social credit code 9135000085405757b.
Person in charge: Wang Youdong.
Authorized Agent: Huang Xiaodong and Wang Jing, practicing lawyers of Fujian Tianheng United (Fuzhou) Law Firm.
Legal Representative: Zhou Lixin.
Plaintiff He * * brought a lawsuit to our court:
1. Order the defendant Ping An Property Insurance Fujian Branch to refund the insurance premium paid by the plaintiff 1530. 12 yuan;
2. Order third-party Ping An Pratt & Whitney; Whitney Company shall be jointly and severally liable for the first claim;
The litigation costs in this case shall be borne by the defendant.
According to the personal loan interest rate calculator of China Merchants Bank, with the annualized interest rate of 7. 125%, the repayment amount is 28,000 yuan, and the monthly repayment amount is 8.66 16 yuan. Deduct monthly according to Ping An Pratt & Whitney 1244. 16 yuan; Whitney and its related parties, the actual annualized interest rate is as high as 35.58%, far exceeding the annualized interest rate of 7. 125% indicated in the application.
At this point, the plaintiff inquired about the bank deduction and called Ping An Pratt & Whitney; Whitney Company realized monthly repayment amount 1244. 16 yuan including insurance premium 127.55438+0 yuan and service fee of 250.49 yuan. The plaintiff did not sign an insurance contract with the defendant, and the defendant used the bank automatic deduction system to deduct the funds other than the sum of the plaintiff's due principal and interest, and deducted the monthly insurance premium 127.5 1 yuan, 12 months * * in total 1530. 12 yuan.
Defendant Ping An Property Insurance Fujian Branch argued that,
Second, the plaintiff has confirmed the amount of litigation insurance premium and the litigation insurance contract has been actually performed. The plaintiff claimed that he didn't know that the respondent deducted the insurance premium through the bank automatic deduction system, which was inconsistent with the facts. The controversial "premium payment" clause in the Special Agreement and Description of Insurance clearly stipulates that "the insured agrees that the insurer entrusts a bank or other payment institution to deduct the premium from the account designated by the insured on a monthly basis". Therefore, the defendant entrusted the bank to deduct the insurance premium from the plaintiff's bank account on a monthly basis, which has a contractual basis. In addition, according to the plaintiff's confession during the prosecution, up to now, the defendant has automatically deducted 12 insurance premium from his bank account, and the plaintiff has signed a payment confirmation letter when insuring, confirming that the monthly insurance premium payable is 127.55438+0 yuan.
The plaintiff is an adult with full capacity for civil conduct, and has not raised any objection to the "abnormal phenomenon" that the monthly deduction amount is obviously higher than the repayable loan principal and interest. It can be presumed that the plaintiff should have known or knowingly accepted the fact that each repayment amount includes the corresponding insurance premium. It can be seen that the insurance contract between the original defendant has actually been fulfilled, and the plaintiff later reneged, which is contrary to goodwill.
To sum up, there is a legal insurance contract relationship between the plaintiff and the defendant, and the defendant collects the insurance premium from the plaintiff according to the contract, which has both factual basis and contractual basis. The plaintiff thinks that the defendant has no right to collect insurance premiums on the grounds of ignorance, which is inconsistent with the facts of this case and requests to dismiss all the plaintiff's claims according to law.
Third party Ping An Pratt & Whitney; Whitney made no statement.
Plaintiff He * * submitted the following evidence according to law around the litigation request:
Third party, Ping An Pratt & Whitney; Whitney didn't submit evidence to our court.
Our hospital organized evidence exchange and cross-examination. A 1-A7 and B7-B 10 have no objection to the truthfulness expressed by both parties, and they are confirmed and filed for future reference. For the disputed evidence B 1-B6, our court finds that:
According to the statements of the parties and the confirmation of the evidence
0030 10 stipulates that an insurance contract consists of insurance clauses, insurance policies, insurance policies, insurance certificates and approval documents. All agreements related to this insurance contract shall be in written form, including electronic data;
Any borrower who has signed a personal loan contract with the insured may apply for this insurance from the insurer as the insured; Financial institutions, small loan companies, commercial enterprises, natural persons and other legal borrowers established according to law can become the insured of this insurance; The insured amount of this insurance contract is the sum of all loan principal and interest payable under the personal loan contract signed by the applicant and the insured; The specific premium payment method shall be determined by the insured and the insurer through consultation, and shall be specified in the insurance contract.
0030 10 means that the insured amount is the sum of all loan principal and interest payable under the personal loan contract concluded between the applicant and the insured; The applicant agrees that the insurer entrusts a bank or other payment institution to deduct the monthly insurance premium from the account designated by the applicant; If the insured defaults on any loan for more than 80 days (excluding), the insurer shall claim compensation from the insured in accordance with the insurance contract; After the insurance claims are settled, the insured needs the insurer to return all the claims and unpaid premiums.
The plaintiff Xie * * signed an agreement with the outsider China Minsheng Bank Taiyuan Branch (hereinafter referred to as "Minsheng Bank Taiyuan Branch") with the number of HT 0900201904589510 "Ping An Personal Loan Insurance Clause": the loan amount was RMB 28,000, the loan term was 36 months, and the loan interest rate under the loan contract was announced by the People's Bank of China. After the loan was issued, Taiyuan Branch of Minsheng Bank directly transferred the loan from the loan account to the plaintiff's main account associated with the loan. Plaintiff understands and agrees that transfer is a function added by Plaintiff to improve customer experience and actual business needs, and Plaintiff agrees that Taiyuan Branch of Minsheng Bank or a third party agency entrusted by it can carry out the aforementioned transfer operation;
The loan conditions are that the plaintiff's relevant application materials are complete, insurance clauses and special agreements and other relevant contracts and documents.
It has been signed, and the plaintiff's loan qualification and credit standing have passed the investigation and review of Taiyuan Branch of Minsheng Bank. If there is insurance or guarantee, the cooperative insurance company/guarantee company of Taiyuan Branch of Minsheng Bank will issue a personal loan guarantee insurance policy and/or guarantee document with Taiyuan Branch of Minsheng Bank and its designated transferee as the insured, and undertake the guarantee insurance and/or guarantee responsibility for all the loan principal and interest of the plaintiff;
The repayment account deduction arrangement is that the plaintiff irrevocably authorizes Minsheng Bank Taiyuan Branch and its entrusted third-party payment institution to deduct the corresponding amount from the repayment account to pay off the payable amount; This contract shall come into effect when the following conditions are met: 1. Minsheng Bank Taiyuan Branch completed the loan issuance, 2. Signature of the plaintiff (including but not limited to click to confirm, online signature, etc.). ) This contract.
As stipulated in the above-mentioned entrustment guarantee contract, the plaintiff entrusts Ping An Pratt & Whitney Financing Guarantee Co., Ltd. to provide guarantee for the loan contract with the number of HT 0900201904589510. The guarantee ratio is 1%, the monthly guarantee rate is 0.46%, and the penalty rate is 0.063%/ day. The charging method is as follows.
The plaintiff understands and recognizes that the annualized rate of guarantee fee is 8.463% according to the cash flow, and the specific monthly amount and payment method are subject to the agreement in the payment confirmation; Payment method: the plaintiff agrees to irrevocably authorize Ping An Pratt & Whitney Financing Guarantee Co., Ltd. or a third party of Ping An Pratt & Whitney Financing Guarantee Co., Ltd. to deduct all or part of the above guarantee fee from the plaintiff's repayment account and transfer it to the account of Ping An Pratt & Whitney Financing Guarantee Co., Ltd., without obtaining the plaintiff's consent or notifying the plaintiff before any deduction.
The plaintiff shall pay 0.89% of the loan principal amount to Ping An Pratt & Whitney Finance Guarantee Co., Ltd. Fujian Branch as the monthly service fee during the loan period, and the plaintiff agrees to irrevocably authorize Ping An Pratt & Whitney Finance Guarantee Co., Ltd. Fujian Branch or a third party entrusted by it to deduct all or part of the above service fee from the plaintiff's repayment account and transfer it to the account of Ping An Pratt & Whitney Finance Guarantee Co., Ltd. Fujian Branch, without obtaining the plaintiff's consent or notifying the plaintiff before deduction; The plaintiff understands that the above service fee is 18.0 16% according to the annualized rate of cash flow, and the specific monthly amount and payment method are subject to the agreement in the Payment Confirmation.
The aforesaid Confirmation of Payment Amount stipulates that the loan principal amount is 28,000 yuan; The total monthly debt service is 866. 16 yuan; Monthly insurance premium 127 438+0 yuan; Monthly guarantee fee 1.29 yuan; The monthly service fee is 249.2 yuan; The total monthly payment is 1244. 16 yuan.
On September 20 19 10, plaintiff Xie * * received a loan of RMB 28,000 from the account with suffix 5888 of China Construction Bank. During the period of 20 19 10 2020 10 September 1 1, the plaintiff repaid 12 through the accounts of China Construction Bank and China Bank, and each installment was paid in three installments.
It is also found out that on September 25th, 2005, China Insurance Regulatory Commission issued the Reply on the Terms and Rates of Ping 'an Personal Loan Guarantee Insurance and SME Loan Guarantee Insurance of China Ping 'an Property Insurance Co., Ltd., and agreed to use the terms and rates of Ping 'an Personal Loan Guarantee Insurance and Ping 'an SME Loan Guarantee Insurance in China Ping 'an Property Insurance Co., Ltd. on a pilot basis. The document states that monthly insurance premium = insurance amount × monthly insurance rate × deductible adjustment coefficient × risk adjustment coefficient; Monthly benchmark premium rate 1.4%, etc.
We believe that the defendant Ping An Property Insurance Fujian Branch is qualified for insurance sales, and its sales of Ping An personal loan guarantee insurance products, insurance terms and rates have been approved by the China Insurance Regulatory Commission, which does not violate the legal prohibitions and administrative mandatory provisions.
After paying the 12 premium and actually performing the contents of the guarantee insurance contract, the plaintiff claimed that the insurance contract was invalid on the grounds that he did not read the insurance contract information carefully and did not know the insurance type, amount and scope, and demanded the defendant to refund the premium and the third party Ping An Pratt & Whitney Company to bear joint liability. There is no factual and legal basis, and this court will not support it.
To sum up, the third party, Ping An Pratt & Whitney Company, was legally summoned, refused to appear in court without justifiable reasons, and did not submit written cross-examination opinions, which was regarded as a voluntary waiver of litigation rights such as cross-examination, and the court tried in absentia according to law. According to Articles 8, 44 and 60 of the Contract Law of People's Republic of China (PRC) and Article 64 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
Reject the plaintiff's claim.
50 yuan, the case acceptance fee, will be charged at half as 25 yuan, which shall be borne by the plaintiff.
If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other party or representative, and appeal to the Intermediate People's Court of Fuzhou City, Fujian Province.
Judge Rui Lin.
December 30th, 2002
Assistant Judge Xue Runying
Bookkeeper Huang Binghao
Note: The main legal provisions cited in this judgment.
Contract law of the people's Republic of China
Article 8 A legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization.
Contracts established according to law are protected by law.
Article 44 A legally established contract shall come into force upon its establishment.
Where laws and administrative regulations stipulate that examination and approval, registration and other procedures shall be handled, such provisions shall prevail.
Article 60 The parties shall fully perform their obligations as agreed.
The parties shall abide by the principle of good faith and fulfill the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
People's Republic of China (PRC) Civil Procedure Law
Article 64 The parties have the responsibility to provide evidence of their own claims.
The people's court shall investigate and collect evidence that the parties and their agents ad litem cannot collect on their own due to objective reasons, or evidence that the people's court considers necessary for hearing a case.
The people's court shall comprehensively and objectively examine and verify the evidence in accordance with legal procedures.
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