Viewpoint... Analysis of the civil liability of "lending bank account".

First of all, the act of lending a bank account is illegal, according to Article 65 of the measures for the Administration of RMB Bank settlement accounts of the people's Bank of China: depositors shall not commit the following acts when using bank accounts: (1) transferring unit funds to individual bank settlement accounts in violation of the provisions of these measures......

Secondly, in terms of liability, according to Article 65 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law: If a business introduction letter, a special seal for a contract, a sealed blank contract or a bank account is borrowed, the lending unit and the borrower are co-litigants.

The Supreme People's Court's reply on whether the party who lends the bank account bears civil liability (Fjing Fu [1991] No. 5) (abolished): lending the bank account is an illegal act in violation of financial management laws and regulations. The people's court shall collect the illegal gains of the lending bank account in accordance with the law and may impose a fine in accordance with the relevant provisions, The corresponding civil liability of the lender shall also be investigated according to different circumstances. Although this approval has expired, but the legal spirit of the different circumstances to investigate the lender's corresponding civil liability, in the absence of new regulations, still has reference value. Therefore, individuals must use bank accounts legally, and illegal lending of accounts may be subject to civil liability.

In the course of judicial practice, the behavior of lending a bank account will produce three different scenarios, and the basis of the judgment under different scenarios is different. Here this article lists a case to cut into these three scenarios:

Cause of action:Private lending disputes

Case No:(2020) Lu 07 min zong no 5022

Facts of the case:In the case of a loan dispute between Walter Company and Jianye Real Estate Company and Sun Mou Enterprise, when Jianye Real Estate Company borrowed 2 million yuan from Walter Company on September 28, 2012, the IOU issued stated that the IOU borrowed 2 million yuan (2000000 yuan), the monthly interest rate of this loan was 3%, and the borrower was Jianye Real Estate Company. And stamped with the official seal of Jianye Real Estate Company. The date of deposit was printed in October 2012, then manually changed to 9 on 10 and added 28 days by hand. The debit note has the words "manager: pay a certain" at the place where it is signed. Sun Mou (then executive director and general manager of Walter Company) lent his personal account to Walter Company for use, and used the bank account to collect the 2 million yuan loan from Walter Company to the company. Jianye Real Estate Company transferred the loan to the designated Sun Mou's personal account, but the next day he was paid by the manager named in the debit note to transfer it out or withdraw it on his behalf. Now Walter Company is unable to repay, Jianye Real Estate Company requires Sun to bear joint and several liability for the money.

The court of first instance held that:The Approval of the Supreme People's Court on the Issue of Whether the Parties Lending Bank Accounts Bear Civil Liability is a reply for individual cases, and there is no clear stipulation on the type and form of civil liability, which lacks universality and clarity. This case is an enterprise loan dispute, and the legal provisions of private lending and guarantee should be applied. The existing laws and regulations and judicial interpretations do not stipulate that lending bank accounts requires civil liability. According to Article 178 of the General principles of the the People's Republic of China Civil Law, Sun has no intention and agreement to bear joint and several liabilities, and does not have an agreement or legal situation to bear joint and several liabilities. Therefore, Walter Company claimed that Sun was jointly and severally liable for the loan of Jianye Real Estate Company to Walter Company, which was unfounded in law and was not supported by the court of first instance in accordance with the law.

The court of second instance held that:In view of the fact that Walter Company admitted in the first instance that the borrower was a co-borrower of Jianye Real Estate Company, although the appeal in the second instance claimed that Sun was a co-borrower of the money involved in the case, but did not submit valid evidence to prove its claim, so the Court did not support Walter Company's appeal claim that Sun was a co-borrower.

Lawyer interpretation:The main basis for this type of case is: 1. There is no mandatory provision of directly related laws and regulations to require it to bear responsibility. According to the principle of freedom without prohibition by law, the court generally will not investigate the relevant civil liability of the lender of the individual bank account. 2. According to the principle of relativity of the loan contract, there will be different problems between the nominal borrower and the actual borrower, which may also lead to the situation of non-civil liability, such reference to the Supreme People's Court Civil Ruling (2020) Supreme Law Min Shen No. 5375.

Cause of action:Private lending disputes

Case No:(2022) Ji 10 min again 37

Facts of the case:In the case of a private loan dispute between Liu and Xie, Tian, Yang, a store, Wang, and Li, Liu and Xie met, and after Liu's introduction, he and Yang, a store and others in October 2012 Signed a loan contract on the 16th, agreeing that the borrower is a store, and Aofeng Cable, Li, Yang, and Wang are all guarantors. On the same day, Xie mou transferred 3 million yuan to Liu mou's account number, and Liu mou issued a receipt for Xie mou, which read: "today I received a transfer of RMB 3 million from Xie jie for a store to repay the loan, with a term of one month and a monthly interest rate of 3%." On the same day, Liu transferred 7 million yuan to Wang's account. Wang issued a receipt asking Liu to transfer it to the actual lender. One of the receipts read: "I have received 3 million yuan in cash today." Since then, due to the failure to repay the loan on schedule, on September 7, 2015, yang mou issued a letter of commitment to xie mou, which read: "on October 16, 2012, due to a store on second street repaying the mortgage loan due from the bank, Liu mou found a loan of 3 million yuan. on October 16, 2012, xie mou remitted 3 million yuan to Liu mou's personal account, and Liu mou wrote a receipt of 3 million yuan to xie mou. Liu put three million yuan into Wang's personal account designated by Yang. ......" The letter of commitment was signed by Yang in the "commitment person", and Liu altered the column of "commitment person" and signed "Intermediary: Liu". It was also found out that Yang and Wang had been husband and wife, and Liu and Tian Jinghui were husband and wife. Now Yang, a store and others are unable to repay the loan, and now Xie requires Liu to bear joint and several other people.

The court of first instance held that:During the trial, the defendant Liu stated that he was only lending bank cards and accounts as an intermediary, not the guarantor of the loan, but according to relevant laws and regulations, the defendant Liu, as the account lender, should bear joint and several liability in accordance with the law. In view of the fact that Liu has clearly altered the "promisor" as the "intermediary" in the "letter of commitment", that is, it is clear to the plaintiff that he does not bear the responsibility for the guarantee, so the court of first instance held that the defendant Liu should bear the responsibility within the scope of his loan account. appropriate.

The second instance of this court held that:During the trial, Liu stated that he was only lending bank cards and accounts as an intermediary, not a guarantor of the loan, but Liu, as a general rational person, should have the obligation to properly keep his bank account, and according to the ''Administrative Measures for RMB Bank Settlement Accounts "Article 65, paragraph 4, stipulates that depositors use bank settlement accounts and are not allowed to rent or lend bank accounts. It can be seen that Liu is at fault for his bank account lending. And according to the provisions of Article 65 of the Interpretation on Application, the lending unit and the lender shall be jointly and severally liable for the illegal lending of bank accounts. The original intention of the legislation behind it is to regulate the normal operation of the market and crack down on irregular operations such as illegal lending of accounts. Therefore, Liu, as a lender, is at fault and should bear joint and several liability. In view of the fact that Liu has clearly changed the "promisor" to "intermediary" in the "letter of commitment", that is, it is stated in an express manner that he will no longer bear the guarantee liability, so the court believes that Liu should bear joint and several within the scope of his fault. Liability is more appropriate.

Lawyer interpretation:In this case, judges mainly make judgments based on the specific circumstances of the case. Combined with relevant judgment cases, their main determination bases can be divided into the following four types: 1. Joint and several liability is indirectly determined based on the principle of unification of rights and responsibilities in the the People's Republic of China Civil Code. Such reference is made to Shandong Higher People's Court Civil Ruling (2015) Lu Min Shen Zi No. 972; 2. Joint and several liability shall be determined based on special contact, for example: kinship, partnership and affiliation, such as reference Tai 'an Intermediate People's Court Civil Judgment (2020) Lu 09 Min Zhong No. 1616, Beijing Miyun District People's Court Civil Judgment (2022) Jing 0118 Min Chu No. 6916; 3. Joint and several liability based on subjective malice of the lender, such as: knowing that the borrower still borrows bank accounts for illegal activities, malicious collusion, etc, such reference is made to the civil judgment of renqiu city People's Court of Hebei Province (2020) Ji 0982 Minchu No. 4154, and the civil judgment of zhecheng county People's Court of Henan Province (2022) Yu 1424 Minzai No. 6.4. If the lender and the borrower jointly use the funds in the same lending bank account, there may be property confusion. For such reference, Beijing No.3 Intermediate People's Court Civil Judgment (2022) Jing 03 Minzhong No. 10087.

Cause of action:Private lending disputes

Case No:(2022) Lu 1723 Min Zai No. 8

Facts of the case:In the case of a private lending dispute between Han and Li and Han, in early March 2020, Han offered to borrow 100000 yuan from Li and passed his brother Han's CCB account and ID card to Li via WeChat, allowing Li to transfer the money. On March 7, 2020, Li transferred 100000 yuan to Han's account through ICBC. On March 15, 2020, Han issued a debit note to Li, which said, "Today borrow cash 100000 yuan only, the repayment date is December 31, 2020, the interest rate is negotiated between the two sides." Sign and state their civil identification number and mobile phone number. He died in 2022, and his parents died many years ago. Wang and Han had a husband and wife relationship, and they had a son, Han, who had divorced before Han's death. Han Moumou has no other heirs, and no legacy and clues have been found in Han Moumou. Li asked Han to bear joint and several liability to repay the account.

The Court found that:Han Moumou (formerly known as Han Mou) was listed by the court as a dishonest executor in 2014 and 2018 for failing to comply with the court's effective judgment. Han's trial admitted using his ID card to handle phone cards and Alipay.

The court of first instance held that:During the period when the defendant was listed as a dishonest executor, in order to evade legal sanctions, he borrowed his brother Han's account to let the plaintiff transfer money, which was illegal. Defendant Han Mou lent his account to Han Mou for illegal use and shall bear joint and several liability.

The retrial held that:The focus of the retrial dispute in this case is whether the retrial applicant Han's loan account should bear civil liability for the loan involved. If the account lender makes a profit by lending the account, or the act of lending the account is causally related to the creditor's loss, or the account lender is at fault for the creditor's loss, the corresponding civil liability shall be distinguished between different circumstances. According to the analysis of the case and the evidence of the whole case, Han moumou and Han mou are brothers. Han mou borrowed Han mou's bank card after being listed as a dishonest person by the court, and used his id card to handle telephone cards, Alipay and Tenpay, which were used to collect the 100000 yuan loan in this case, and withdrew the 100000 yuan loan in the bank card through Alipay and Tenpay. Article 65, paragraph 1, paragraph 4, of the Measures for the Administration of RMB Bank Settlement Accounts of the People's Bank of China stipulates that depositors shall not lease or lend bank accounts when using bank settlement accounts. The retrial applicant in this case, Han, lent his bank card account to Han, in violation of financial management laws and regulations. As the owner of the bank account involved in the case, he was negligent in management and subjectively at fault. In the case of Han's failure to repay the loan in time, the retrial applicant Han shall bear supplementary liability for the loan involved in Han's case. Based on the statements of both parties and the evidence in this case, although it is impossible to identify Han as the actual user of the money involved and obtain benefits from it, Han still lent a bank card and allowed to use his ID card to handle the phone card and Alipay, which was at fault for the property loss of the retrial respondent Li. Therefore, the respondent Li was judged to bear supplementary liability.

Lawyer interpretation:This kind of situation is also the judge based on the specific circumstances of the case to make a decision, but the judge's freedom in the process of judgment is one of the most important factors. It mainly takes into account the subjective general negligence of the lender. The reference cases are: Civil Judgment of Mancheng District People's Court of Baoding City, Hebei Province (2021) Ji 0607 Min Chu No. 1916, Civil Judgment of Chengwu County People's Court of Shandong Province (2022) Lu 1723 Min Zai No. 8.

In the face of such disputes, we must first understand the judge's thinking on the issue of civil liability. By consulting the relevant judgments and the "Determination of the Civil Liability of Bank Account Lenders" issued by the Shandong High Law, the author can learn the judge's point of view: "First of all, it should be clear whether there is an act of lending a bank account. The core lies in whether the borrower has obtained the right to control the bank account, including direct control and indirect control. Secondly, the emergence of joint and several liability must be agreed by the parties or the provisions of the law, there is no agreement or statutory circumstances, the court decided that the debtor to bear joint and several liability must be cautious." Therefore, it is not difficult for us to find the judge's intention to judge such cases, combined with their thinking, we can roughly analyze the future direction of litigation cases and judge whether they can win.