The plaintiff's name has the same pronunciation but different characters, which is a clerical error at the time of issuance. He can sue, and the People's Court should also accept the case, or file a case, and the court will ascertain the facts and make a ruling.

Article 2, paragraph 2, of the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases" "IOUs, receipts, IOUs and other debt certificates held by the parties do not indicate the creditor. If the party involved in the certificate files a private loan lawsuit, the People's Court shall accept it. If the defendant raises a fact-based defense against the plaintiff's creditor qualifications, and if the People's Court finds that the plaintiff does not have creditor qualifications after trial, it shall rule to dismiss the lawsuit."

"Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases"

(Fa Interpretation [2015] No. 18)

In order to correctly hear private lending cases Loan dispute cases are handled in accordance with the General Principles of the Civil Law of the People's Republic of China, the Property Law of the People's Republic of China, the Guarantee Law of the People's Republic of China, the Contract Law of the People's Republic of China, and the These regulations are formulated in accordance with the provisions of the Civil Procedure Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China and other relevant laws, combined with trial practice.

Article 1: Private lending as mentioned in these regulations refers to the act of financing between natural persons, legal persons, other organizations and among themselves.

This provision does not apply to disputes arising from the granting of loans and other related financial services to financial institutions and their branches established with the approval of the financial regulatory authorities to engage in loan business.

Article 2 When the lender files a lawsuit in the People's Court, it shall provide IOUs, receipts, IOUs and other evidence of creditor's rights and other evidence that can prove the existence of the legal relationship between the loan and the lender.

If the creditor's rights certificates such as IOUs, receipts, and IOUs held by the parties do not indicate the creditor, and the party holding the creditor's rights certificates files a private loan lawsuit, the People's Court shall accept it. The defendant raised a fact-based defense against the plaintiff's creditor qualifications. After trial, the People's Court held that the plaintiff did not have creditor qualifications and ruled to dismiss the lawsuit.

Article 3 If the borrower and the lender have not agreed on the place of performance of the contract or the agreement is unclear, and no supplementary agreement has been reached afterwards, and it still cannot be determined according to the relevant provisions of the contract or trading practices, the place of performance of the contract shall be the location of the party receiving the currency. .

Article 4 If the guarantor provides a joint liability guarantee for the borrower, and the lender only sues the borrower, the People's Court may not add a guarantor as a co-defendant; if the lender only sues the guarantor, the People's Court may The additional borrower is *** and the same defendant.

If the guarantor provides a general guarantee to the borrower, and the lender only sues the guarantor, the People's Court shall add the borrower as *** and the same defendant; if the lender only sues the borrower, the People's Court may not add a guarantor as * **Co-defendant.

Article 5: If, after filing a case, the People's Court finds that private lending itself is suspected of illegal fund-raising crimes, it shall rule to dismiss the prosecution and transfer clues and materials suspected of illegal fund-raising crimes to the public security or procuratorial organs.

The public security or procuratorate refuses to file a case, or the case is withdrawn after being filed for investigation, or the procuratorate makes a decision not to prosecute, or the people's court makes an effective judgment that it does not constitute an illegal fund-raising crime, and the parties file the same fact with the people again If a lawsuit is filed in court, the people's court shall accept it.

Article 6: After the People's Court files a case, if it discovers clues or materials related to a private lending dispute case that are related but not the same facts and are suspected of illegal fund-raising and other crimes, the People's Court shall continue to hear the private lending dispute case, And transfer clues and materials suspected of illegal fund-raising and other crimes to the public security or procuratorial organs.

Article 7 The basic case facts of private lending must be based on the results of the criminal case. If the criminal case has not yet been concluded, the people's court shall rule to suspend the proceedings.

Article 8 If the borrower is suspected of committing a crime or is found guilty by an effective judgment, and the lender sues to request the guarantor to bear civil liability, the people's court shall accept the case.

Article 9 If any of the following circumstances occurs, it may be deemed to meet the requirements for the validity of a loan contract between natural persons in Article 210 of the Contract Law:

(1) In cash If the payment is made, it will be made when the borrower receives the loan;

(2) If it is paid by bank transfer, online electronic remittance or through an online loan platform, it will be paid when the funds arrive in the borrower's account;

(3) If a bill is delivered, the borrower shall obtain the rights to the bill in accordance with the law;

(4) If the lender authorizes the borrower to control the specific fund account, the borrower shall obtain the rights to the bill from the borrower. When the actual control of the account is obtained;

(5) When the lender provides the loan in other ways agreed with the borrower and actual performance is completed.

Article 10: Except for loan contracts between natural persons, if the parties claim that a private loan contract shall take effect from the time the contract is established, the people's court shall support it, but the parties have agreed otherwise or the laws and administrative regulations provide otherwise. Except.

Article 11 Private loan contracts concluded between legal persons, other organizations, and between them for production and operation needs, unless there are Article 52 of the Contract Law and Article 14 of these Provisions. Except for the circumstances specified in Article 1, if the parties claim that the private loan contract is valid, the people's court shall support it.

Article 12: Legal persons or other organizations raise funds from employees in the form of loans within the unit for use in the production and operation of the unit, and there is no violation of Article 52 of the Contract Law or Article 10 of these Provisions. Under the circumstances specified in Article 4, if the parties claim that the private loan contract is valid, the people's court shall support it.

Article 13 If the lending behavior of the borrower or lender is suspected of a crime, or an effective judgment has determined that it constitutes a crime, and the parties file a civil lawsuit, the private lending contract will not automatically be invalid. The People's Court shall determine the validity of a private loan contract in accordance with Article 52 of the Contract Law and Article 14 of these Provisions.

If the guarantor claims not to bear civil liability on the grounds that the borrower’s or lender’s lending behavior is suspected of being a crime or has been determined by an effective judgment to constitute a crime, the People’s Court shall rely on the validity of the private loan contract and the guarantee contract. , the degree of fault of the parties concerned, and the civil liability of the guarantor shall be determined in accordance with the law.

Article 14 Under any of the following circumstances, the people's court shall determine that a private lending contract is invalid:

(1) Extracting credit funds from a financial institution and then lending them to the borrower at a high interest rate, and the borrower knew or should have known in advance;

(2) The funds obtained from borrowing from other enterprises or raising funds from employees of the unit were re-lent to the borrower for profit, and the borrower knew or should have known in advance

(3) The lender knew in advance or should have known that the borrower's loan was used for illegal and criminal activities but still provided the loan;

(4) It violated social order and good customs;

(5) Other violations of the mandatory provisions on the effectiveness of laws and administrative regulations.

Article 15: The plaintiff files a private loan lawsuit based on IOUs, receipts, IOUs and other credit documents. The defendant files a defense or counterclaim based on the basic legal relationship and provides evidence to prove that the credit dispute is not caused by private lending activities. , the people's court shall try the case based on the ascertained facts of the case and in accordance with the basic legal relations.

The provisions of the preceding paragraph shall not apply to agreements on claims and debts reached by the parties through mediation, reconciliation or liquidation.

Article 16 The plaintiff only files a private loan lawsuit based on IOUs, receipts, IOUs and other credit documents. The defendant defends that the loan has been repaid, and the defendant should provide evidence to prove its claim. After the defendant provides corresponding evidence to prove its claim, the plaintiff should still bear the burden of proving the establishment of the lending relationship.

If the defendant pleads that the lending behavior has not actually occurred and can provide a reasonable explanation, the people's court shall take into account the loan amount, payment delivery, the financial ability of the parties, local or transaction methods between the parties, transaction habits, and changes in the property of the parties. Circumstances and witness testimony and other facts and factors, comprehensive judgment to verify whether the loan occurred.

Article 17 The plaintiff only files a private loan lawsuit based on the transfer voucher from a financial institution. The defendant defends that the transfer is to repay previous loans or other debts of both parties. The defendant should provide evidence to prove its claim. After the defendant provides corresponding evidence to prove its claim, the plaintiff should still bear the burden of proof for the establishment of the lending relationship.

Article 18 According to the provisions of paragraph 2 of Article 174 of the "Interpretation on the Application of the Civil Procedure Law of the People's Republic of China", the plaintiff who bears the burden of proof If a person refuses to appear in court without justifiable reasons, and the main facts of the case such as the lending behavior, loan amount, payment method, etc. cannot be confirmed after reviewing the existing evidence, the people's court will not recognize the facts claimed by him.

Article 19: When the people's court finds the following circumstances when hearing a private loan dispute case, it shall strictly examine the reason, time, place, source of money, delivery method, flow of money, and the relationship between the borrower and the lender, Economic status and other facts, comprehensively judge whether it is a false civil lawsuit:

(1) The lender obviously does not have the ability to lend; (2) The facts and reasons on which the lender sues. Obviously inconsistent with common sense;

(3) The lender cannot submit the credit certificate or the submitted credit certificate may be forged;

(4) Both parties have participated multiple times within a certain period Private lending litigation;

(5) One or both parties refuse to attend court without justifiable reasons to participate in the litigation, and entrust an agent to make unclear or inconsistent statements about the lending facts;

( 6) The parties have no dispute over the occurrence of the loan or the defense is obviously unreasonable;

(7) The borrower’s spouse or partner or other creditors who are not party to the case raise objections with factual basis;

(8) The parties have transferred property at low prices in other disputes;

(9) The parties have improperly given up their rights;

(10) Others There may be cases of false private loan litigation.

Article 20: If the plaintiff applies to withdraw the lawsuit after it is found to be a false private loan lawsuit, the People's Court shall not grant permission, and shall make a judgment to reject the lawsuit in accordance with the provisions of Article 112 of the Civil Procedure Law. ask.

If litigation participants or other persons maliciously create or participate in false litigation, the people's court shall comply with Articles 111, 112 and 113 of the Civil Procedure Law. According to the provisions of the regulations, fines and detention shall be imposed in accordance with the law; if a crime is constituted, the crime shall be transferred to the judicial authority with jurisdiction for investigation of criminal responsibility.

If a unit maliciously creates or participates in false litigation, the people's court shall fine the unit, and may fine or detain the principal person in charge or the person directly responsible; if a crime is constituted, it shall be transferred to the competent authority with jurisdiction judicial authorities to pursue criminal liability.

Article 21: Another person signs or seals an IOU, a receipt, an IOU, or other debt certificate or a loan contract, but does not indicate his identity as the guarantor or assume the liability for the guarantee, or it cannot be inferred from other facts that he is the guarantor. If the guarantor or the lender requests that it assume the guarantee liability, the People's Court will not support it.

Article 22: Where a borrower and a borrower form a lending relationship through an online loan platform, and the provider of the online loan platform only provides media services, and the parties request it to bear guarantee liability, the People's Court will not support it.

If the provider of an online loan platform expressly states through web pages, advertisements or other media or has other evidence to prove that it provides guarantee for loans, and the lender requests the provider of the online loan platform to bear the guarantee liability, the People's Court shall support.

Article 23 The legal representative or person in charge of the enterprise signs a private loan contract with the lender in the name of the enterprise. The lender, the enterprise or its shareholders can prove that the loan amount is used by the legal representative or person in charge of the enterprise. For personal use, if the lender requests to list the legal representative or person in charge of the enterprise as a co-defendant or a third party, the People's Court shall grant the permission.

If the legal representative or person in charge of an enterprise signs a private loan contract with a lender in his or her own name, and the borrowed items are used for the production and operation of the enterprise, and the lender requests that the enterprise and the individual bear joint liability, the People's Court should be supported.

Article 24: If the parties sign a sales contract as a guarantee for the private lending contract, and the borrower cannot repay the loan when it expires, and the lender requests performance of the sales contract, the people's court shall follow the legal relationship of private lending. Hear the case and explain the request for modification to the parties. If the party refuses to change, the people's court shall rule to dismiss the lawsuit.

After the judgment made in accordance with the private lending legal relationship takes effect, if the borrower fails to fulfill the monetary debt determined by the effective judgment, the lender can apply for the auction of the subject matter of the sales contract to repay the debt. The borrower or lender has the right to claim return or compensation for the difference between the price obtained from the auction and the principal and interest of the loan that should be repaid.

Article 25 If the lender and the borrower have not agreed on the interest, and the lender claims to pay the interest during the loan period, the people's court will not support it.

If the interest agreement on a loan between natural persons is unclear and the lender claims to pay interest, the people's court will not support it. Except for loans between natural persons, if the loan interest agreement is unclear between the borrower and the lender and the lender claims interest, the people's court shall determine the interest based on the content of the private loan contract and the local or party transaction methods, transaction habits, market interest rates and other factors.

Article 26 If the interest rate agreed between the borrower and the lender does not exceed the annual interest rate 24, and the lender requests the borrower to pay interest according to the agreed interest rate, the people's court shall support it.

The interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36, and the interest agreement for the excess portion is invalid. If the borrower requests the lender to return the interest that has been paid in excess of 36% of the annual interest rate, the People's Court shall support the request.

Article 27 The loan amount stated in the debt certificates such as IOUs, receipts, IOUs, etc. is generally recognized as the principal. If interest is deducted from the principal in advance, the people's court shall determine the actual loan amount as the principal.

Article 28 After the borrower and the lender have settled the principal and interest of the earlier loan, the interest will be included in the principal of the later loan and re-issue a credit certificate. If the interest rate in the previous period does not exceed the annual interest rate of 24, the re-issued credit certificate will state The amount can be recognized as the principal of the later loan; the interest in excess cannot be included in the principal of the later loan. If the agreed interest rate exceeds the annual interest rate 24, and the party claims that the excess interest cannot be included in the later loan principal, the People's Court shall support it.

Based on the calculation of the preceding paragraph, the sum of principal and interest payable by the borrower after the expiration of the loan period cannot exceed the initial loan principal and the entire loan period calculated with an annual interest rate of 24 based on the initial loan principal. the sum of interest. If the lender requests the borrower to pay the excess amount, the people's court will not support it.

Article 29 If the borrower and the lender have an agreement on the overdue interest rate, the agreement shall prevail, but shall not exceed the annual interest rate of 24%.

If the overdue interest rate is not agreed upon or the agreement is unclear, the people's court may distinguish between different situations: (1) Neither the interest rate during the loan period nor the overdue interest rate is agreed upon, the loan If the borrower claims that the borrower should pay interest during the period of capital occupation at an annual rate of 6 from the date of overdue repayment, the People's Court shall support it;

(2) The interest rate during the loan period is agreed but the overdue interest rate is not agreed upon , if the lender claims that the borrower should pay interest during the period of capital occupation according to the interest rate during the loan period from the date of overdue repayment, the People's Court shall support it.

Article 30 The lender and the borrower have agreed on both the overdue interest rate and liquidated damages or other charges. The lender may choose to claim overdue interest, liquidated damages or other charges, or all of them together. , but if the total annual interest rate exceeds 24, the People's Court will not support it.

Article 31 If there is no agreed interest but the borrower voluntarily pays, or voluntarily pays interest or liquidated damages in excess of the agreed interest rate, and does not harm the interests of the country, the collective and third parties, the borrower improperly The people's court will not support requests from the lender to return the loan on the grounds of profit, except for the borrower's request to return the interest that exceeds 36% of the annual interest rate.

Article 32 The borrower may repay the loan in advance, unless otherwise agreed by the parties.

If the borrower repays the loan in advance and claims that the interest shall be calculated based on the actual borrowing period, the people's court shall support it.

Article 33 After the promulgation and implementation of these regulations, the "Several Opinions on the Trial of Loan Cases by the People's Courts" issued by the Supreme People's Court on August 13, 1991 will be abolished at the same time; the Supreme People's Court previously issued Judicial interpretations that are inconsistent with these provisions shall no longer apply.