Case handling notes! The millions lent out due to carelessness may not be returned.

General facts of the case: Mr. Zhang and Mr. Wang both grew up in Shenzhen and were high school classmates. In the past few years, Zhang has borrowed money from Wang one after another, adding up to several million. The monthly interest is 1.125%, paid monthly. Some of the funds lent by Mr. Wang were transferred and some were cash. During this period, Zhang also gave Mr. Wang a so-called IOU guaranteed by Zhang’s father. Wang did not see Zhang’s father in person, nor did he ask to verify whether it was Zhang’s father’s signature via phone call or video: Moreover, the written expression of the guarantee was not clear.

Later, Zhang’s financial situation deteriorated and he could not pay back the money, so Wang sued Zhang and Zhang’s father to Futian Court. When the mediation started, Zhang had a very good attitude and admitted all the cash aspects: However, because Zhang's father, who was *** and the defendant, did not come to the court, the mediation could not be completed. When the trial officially opened, Zhang disappeared, and Zhang's father, who was the defendant's co-defendant, did not appear in court. Then, the judge ruled that the amount of cash Zhang admitted during the mediation was not included in the amount owed, which means that this part did not support Mr. Wang’s claim.

There is another detail: the judge asked Wang in court, "Where does your money come from?" Wang did not understand that the judge was investigating the source of funds to rule out that he was a professional lender (courts hearing loan cases all So); but angrily, he threw the judge back in court; but Wang Ben was also a real person and still admitted that the money came from bank loans. In short, the amount obtained in the first trial was reduced by two-thirds, and the guarantor Zhang’s father was not held accountable. In order for the judgment to take effect as soon as possible, Wang did not appeal and directly entered the enforcement procedure. After the court sealed what could be sealed (but could not dispose of it, such as the other party's car), it also placed Zhang on the restricted consumption list, and then it was over. As a result, Wang didn't get a penny.

After listening to the introduction, I have a question in my mind: During the mediation, when Zhang can still communicate normally, if it can be determined that Zhang’s father’s signature is a signature, the prosecution against Zhang’s father can be withdrawn. , Wang and Zhang directly settled the case through mediation, and asked Zhang to confirm the actual amount of the loan in the court's mediation letter. After all, there is no evidence for the cash part, so I still feel guilty.

Friends who are not legal professionals may feel strange after hearing the case, "Zhang himself admitted the cash loan, why didn't the judge support this part of the amount when he made the ruling?" A legal provision is involved here. That is to say, the parties’ self-confessions about the facts of the case during mediation cannot be used as evidence against them in subsequent litigation. The reason why the law stipulates this is to dispel the concerns of both parties during mediation and facilitate mediation.

We have seen several determinations in the judgment of the Futian Court.

01 "The plaintiff himself admitted in court that he was not sure whether it was the signature and fingerprint of the defendant ***."

02 "Although in the repayment agreement, the plaintiff made it clear that the loan included its repayment, bank loan transfer items and interest payable, WeChat loan items and cash withdrawals, although during the mediation process the defendant* ** is confirmed, but the facts confirmed by the defendant *** during the mediation process shall not be used as evidence against him in the lawsuit. The defendant *** did not come to court to file a defense. The plaintiff should provide evidence to prove that the above-mentioned loan is legal, valid and actually delivered to the defendant. ***. "There is no evidence to prove the cash loan item claimed by the plaintiff, and this court will not accept it."

03" Regarding the 300,000 bank loan on August 31, 2021 claimed by the plaintiff. The plaintiff has actually paid the loan to the defendant ***'s account, but the plaintiff believes that the loan is a bank loan and should be invalid. However, the defendant *** should repay the principal and corresponding fund occupation fees and fund occupation fees to the plaintiff. Calculated based on the one-year loan market quotation rate published by the National Interbank Funding Center at the time of the lawsuit." (That is, the court did not support the four times interest rate of LPR agreed upon by both parties, but held that the re-lending was invalid).

04 "About the liability of the defendant ***. The plaintiff claimed that the defendant *** provided the guarantee of the defendant *** at the request of the plaintiff. The defendant *** did not issue or sign the guarantee in person. Whether There is doubt about the true intention of the defendant, and it does not correspond to whether the repayment agreement involved in the guarantee is the repayment agreement signed by the plaintiff and the defendant. It also does not specify the creditor, debtor or the specific circumstances of the guaranteed debt. The plaintiff claims that the defendant *** is jointly and severally responsible for the debts of defendant ***. There is insufficient evidence and this court will not support it."

Mr. Zhang was also troubled by the first three items. The other party was missing and missed. It is also helpless to find a good time for mediation; as for the guarantee in item 4, we can know from the Supreme Court’s (2022) Supreme Court Case No. 206 that the guarantor has not appeared in court to defend, so it cannot be concluded that he has agreed to provide guarantee.

Case tips.

01 The documents must be standardized and the process must be rigorous. Returning to this case, Mr. Wang did not ask Zhang to promptly confirm the amount in writing for the cash portion lent; the contents of Zhang’s father’s guarantee note were unclear, and Mr. Wang neither asked Zhang’s father to sign on the spot nor to conduct a video recording. He made a phone call to confirm that when Zhang was unable to repay the money, the multiple properties under Zhang’s father’s name were not involved in this case.

02 The borrowing time period between both parties is quite long. For Mr. Wang, when he sees problems with Zhang’s repayment ability and the situation is not good, he should stop losses in time and should not continue to lend credulously.

03 When collecting money, you must have patience, determination, and courage within the legal scope. At present, Zhang only has two companies left, one is a company in which he holds 100% shares (this company has no execution value, and tens of thousands of evaluation fees must be paid in advance, which is not considered); the other is a company in which Zhang holds 20% shares and is currently operating normally. Mr. Wang can start from this perspective and talk to the major shareholders. There may be some room and hope.