Point of View... Can the transferee claim interest after the transfer of financial non-performing claims.
Published:
2022-08-03
There is a dispute in practice as to whether the assignee can claim interest after the transfer of financial non-performing claims. One view is that the transfer of financial non-performing claims should be determined by reference to the legal provisions and adjudication rules for the transfer of ordinary claims. Another view was that the transfer of financial non-performing claims must be distinguished from the transfer of ordinary claims, and the transferee could not claim interest after the date of transfer. Brief of the case On November 21, 2018, Jilin Jiangbei Sub-branch of Jilin Bank Co., Ltd. (hereinafter referred to as Jilin Jiangbei Sub-branch of Jilin Bank) signed a loan contract with the defendant Zhongcheng Separation Machinery Company. The loan period is 1 year, from November 21, 2018 to 2019 November 20. On November 21, 2018, the defendant through the financing guarantee company, Baide machinery company, Han Zhe, sun Xiaoming and Jilin Jiangbei sub-branch of Jilin bank respectively signed the "guarantee contract" numbered Jilin jiangbei sub-branch of Jilin bank co., ltd. No. 29-1, 29-2 and 29-3 in 2018, voluntarily assuming joint and several guarantee liabilities for the performance of all loan principal, interest and expenses under the loan contract of the defendant zhongcheng separation machinery company. On December 3, 2020, Jilin Bank Co., Ltd. (hereinafter referred to as Jilin Bank) and China Great Wall Asset Management Yinyuan Co., Ltd. Jilin Branch (hereinafter referred to as Great Wall Asset Company Jilin Branch) signed the "Jilin Bank 2020 (Third) Non-performing Assets Bulk Transfer (1 Package) Agreement". Transfer all the claims of Jilin Jiangbei Sub-branch of Jilin Bank to the defendants Zhongcheng Separation Machinery Company, Tongcheng Financing Guarantee Company, Baide Machinery Company, Han Zhe and Sun Xiaoming to Jilin Branch of Great Wall Assets Company, and Jilin Branch of Great Wall Assets Company will pay the transfer price, and on December 25, 2020 in the Financial Times published a joint announcement on the transfer of claims and debt collection of Jilin Bank Co. and China Great Wall Asset Management Co. On March 12, 2021, Jilin Branch of Great Wall Asset Company transferred all the creditor's rights involved in the case to the plaintiff, and signed the "Debt Transfer Agreement between Jilin Branch of China Great Wall Asset Management Co., Ltd. and Shanghai Chengfan Enterprise Management Partnership (Limited Partnership)", the plaintiff paid the transfer price, and on April 14, 2021, in the Financial Times, it was published that the Jilin Branch of China Great Wall Asset Management Co., Ltd. and Shanghai Chengfan Enterprise Management Partnership (Limited Partnership) joint announcement on the transfer of claims and debt collection of the claims involved in the case was collected. Relevant provisions The Supreme People's Court [2009] No. 19 "Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Creditor's Rights" (issued on April 3, 2009): "9. on the issue of interest charged by the transferee, the meeting held that the transferee's claim to the state-owned enterprise debtor The calculation base of interest should be based on the principal of the original loan contract; if the transferee claims the interest incurred after the transfer date of the bad creditor's transfer date to the state-owned enterprise debtor. However, if the contract for the transfer of non-performing creditor's rights is found to be invalid, the transferor shall pay interest at the same time as returning the principal amount of the transferee to the transferee, in accordance with the fixed deposit rate for the same period stipulated by the People's Bank of China. 12, With regard to the scope of application of the minutes, the meeting held that in the minutes, state-owned banks include wholly state-owned commercial banks, state-controlled commercial banks and state-owned policy banks; financial asset management companies include asset disposal consortia established by financial asset management companies such as Huarong, Great Wall, Dongfang and Cinda through formation or equity participation. State-owned enterprise debtors include wholly state-owned and state-controlled enterprise legal persons. The transferee refers to the legal person or natural person of the non-financial asset management company. The transfer of non-performing claims includes the transfer of policy and commercial non-performing claims of financial asset management companies. Policy non-performing claims refer to the non-performing claims acquired by the above-mentioned four financial asset management companies in 1999 and 2000 from the Bank of China, the Agricultural Bank of China, the China Construction Bank, the Industrial and Commercial Bank of China and the China Development Bank to pay the acquisition costs in the form of re-loans or financial guarantees under the unified arrangement of the state; commercial non-performing claims refer to the non-performing claims acquired by the above four financial asset management companies from Bank of Communications, Bank of China, China Construction Bank and Industrial and Commercial Bank of China under the leadership of government authorities from 2004 to 2005. Reply of the Supreme People's Court to the Request for Instructions on How to Understand the Minutes of the Meeting of the Supreme People's Court (2009) No. 19 (September 25, 2009 [2009] Min Er He Zi No. 21) "Yunnan Higher People's Court: Your Request for Instructions on How to Understand the Minutes of the Meeting of the Supreme People's Court (2009) No. 19" has been received. After research, the reply is as follows: the essence of the problem to be solved in the summary of the symposium on the trial of cases involving the transfer of financial non-performing creditor's rights (hereinafter referred to as the "summary") issued by our hospital on April 3, 2009 is how to solve and resolve the historical problems left over from the planned economy period. Its main purpose is to regulate the transfer of non-performing financial claims, maintain corporate and social stability, prevent the loss of state-owned assets, and protect national economic security. In accordance with the spirit and purpose of the Minutes, cases involving disputes over the transfer of financial non-performing claims by debtors of non-state-owned enterprises should also apply with reference to the provisions of the Minutes." The Supreme People's Court's Reply on Whether Non-financial Institutions Can Claim Full Creditor's Rights to Debtors of Non-state-owned Enterprises after Assigning Financial Non-performing Creditor's Rights (2013) "Hubei Provincial Higher People's Court:(1) Whether Non-financial Institutions Can Claim Future Interest from Debtors of Non-state-owned Enterprises in the Execution Procedure for Assigning Financial Non-performing Creditor's Rights Determined by Effective Legal Documents, it should be dealt with in the spirit of the" Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims by the Supreme People's Court. (2) According to Article 12 of the Minutes, the Minutes are not retroactive. Prior to the publication of the Minutes, if an institution or individual of a non-financial asset management company assigns a financial non-performing claim as determined by a legal instrument in force, or if the assigned financial non-performing claim is determined by a legal instrument in force, interest prior to the date of publication shall be calculated in accordance with the relevant legal provisions; interest shall not be accrued after the date of publication. After the publication of the Minutes, if an institution or individual of a non-financial asset management company assigns a financial non-performing claim determined by a legal instrument in force, the interest prior to the date of assignment shall be calculated in accordance with the relevant legal provisions; no interest shall be accrued after the date of assignment." legal analysis In this case, the claim is a financial non-performing claim, and after the transfer of the financial non-performing claim, can the transferee claim interest after the transfer? According to Article 9 of the Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims, the People's Court shall not support the assignee's claim to the debtor of a state-owned enterprise for interest incurred after the date of the transfer of non-performing claims. At the same time, Article 12 of the Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Credits has clear provisions on the scope of application of the minutes. The judicial policies involved in the minutes have their specific historical background and are specific to the specific time period. Special provisions are made for the transfer of financial non-performing claims by specific subjects. According to the facts of this case, the transfer of creditor's rights in this case occurred in 2020 and 2021. Jilin bank transferred the creditor's rights to Jilin branch of great wall assets company, and Jilin branch of great wall assets company transferred the creditor's rights to Shanghai chengfan partnership in March 2021. its specific form and time of occurrence do not belong to the policy bad creditor's rights stipulated in the minutes of the symposium on the trial of cases involving the transfer of financial bad creditor's rights, the provisions of the "Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims" could not be applied, so the plaintiff had the right to require the defendant Zhongcheng Separation Machinery Company to pay interest on the loan and interest on overdue payments in accordance with the provisions of the original contract. Lawyer Tips When acquiring financial non-performing claims, the transferee of financial non-performing claims should pay special attention to the relevant subjects and time of financial non-performing claims in order to determine a reasonable purchase price and avoid claiming that interest is not supported by the debtor.
There is a dispute in practice as to whether the assignee can claim interest after the transfer of financial non-performing claims. One view is that the transfer of financial non-performing claims should be determined by reference to the legal provisions and adjudication rules for the transfer of ordinary claims. Another view was that the transfer of financial non-performing claims must be distinguished from the transfer of ordinary claims, and the transferee could not claim interest after the date of transfer.
Brief of the case
On November 21, 2018, Jilin Jiangbei Sub-branch of Jilin Bank Co., Ltd. (hereinafter referred to as Jilin Jiangbei Sub-branch of Jilin Bank) signed a loan contract with the defendant Zhongcheng Separation Machinery Company. The loan period is 1 year, from November 21, 2018 to 2019 November 20.
On November 21, 2018, the defendant through the financing guarantee company, Baide machinery company, Han Zhe, sun Xiaoming and Jilin Jiangbei sub-branch of Jilin bank respectively signed the "guarantee contract" numbered Jilin jiangbei sub-branch of Jilin bank co., ltd. No. 29-1, 29-2 and 29-3 in 2018, voluntarily assuming joint and several guarantee liabilities for the performance of all loan principal, interest and expenses under the loan contract of the defendant zhongcheng separation machinery company.
On December 3, 2020, Jilin Bank Co., Ltd. (hereinafter referred to as Jilin Bank) and China Great Wall Asset Management Yinyuan Co., Ltd. Jilin Branch (hereinafter referred to as Great Wall Asset Company Jilin Branch) signed the "Jilin Bank 2020 (Third) Non-performing Assets Bulk Transfer (1 Package) Agreement". Transfer all the claims of Jilin Jiangbei Sub-branch of Jilin Bank to the defendants Zhongcheng Separation Machinery Company, Tongcheng Financing Guarantee Company, Baide Machinery Company, Han Zhe and Sun Xiaoming to Jilin Branch of Great Wall Assets Company, and Jilin Branch of Great Wall Assets Company will pay the transfer price, and on December 25, 2020 in the Financial Times published a joint announcement on the transfer of claims and debt collection of Jilin Bank Co. and China Great Wall Asset Management Co.
On March 12, 2021, Jilin Branch of Great Wall Asset Company transferred all the creditor's rights involved in the case to the plaintiff, and signed the "Debt Transfer Agreement between Jilin Branch of China Great Wall Asset Management Co., Ltd. and Shanghai Chengfan Enterprise Management Partnership (Limited Partnership)", the plaintiff paid the transfer price, and on April 14, 2021, in the Financial Times, it was published that the Jilin Branch of China Great Wall Asset Management Co., Ltd. and Shanghai Chengfan Enterprise Management Partnership (Limited Partnership) joint announcement on the transfer of claims and debt collection of the claims involved in the case was collected.
Relevant provisions
The Supreme People's Court [2009] No. 19 "Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Creditor's Rights" (issued on April 3, 2009): "9. on the issue of interest charged by the transferee, the meeting held that the transferee's claim to the state-owned enterprise debtor The calculation base of interest should be based on the principal of the original loan contract; if the transferee claims the interest incurred after the transfer date of the bad creditor's transfer date to the state-owned enterprise debtor. However, if the contract for the transfer of non-performing creditor's rights is found to be invalid, the transferor shall pay interest at the same time as returning the principal amount of the transferee to the transferee, in accordance with the fixed deposit rate for the same period stipulated by the People's Bank of China. 12, With regard to the scope of application of the minutes, the meeting held that in the minutes, state-owned banks include wholly state-owned commercial banks, state-controlled commercial banks and state-owned policy banks; financial asset management companies include asset disposal consortia established by financial asset management companies such as Huarong, Great Wall, Dongfang and Cinda through formation or equity participation. State-owned enterprise debtors include wholly state-owned and state-controlled enterprise legal persons. The transferee refers to the legal person or natural person of the non-financial asset management company. The transfer of non-performing claims includes the transfer of policy and commercial non-performing claims of financial asset management companies. Policy non-performing claims refer to the non-performing claims acquired by the above-mentioned four financial asset management companies in 1999 and 2000 from the Bank of China, the Agricultural Bank of China, the China Construction Bank, the Industrial and Commercial Bank of China and the China Development Bank to pay the acquisition costs in the form of re-loans or financial guarantees under the unified arrangement of the state; commercial non-performing claims refer to the non-performing claims acquired by the above four financial asset management companies from Bank of Communications, Bank of China, China Construction Bank and Industrial and Commercial Bank of China under the leadership of government authorities from 2004 to 2005.
Reply of the Supreme People's Court to the Request for Instructions on How to Understand the Minutes of the Meeting of the Supreme People's Court (2009) No. 19 (September 25, 2009 [2009] Min Er He Zi No. 21) "Yunnan Higher People's Court: Your Request for Instructions on How to Understand the Minutes of the Meeting of the Supreme People's Court (2009) No. 19" has been received. After research, the reply is as follows: the essence of the problem to be solved in the summary of the symposium on the trial of cases involving the transfer of financial non-performing creditor's rights (hereinafter referred to as the "summary") issued by our hospital on April 3, 2009 is how to solve and resolve the historical problems left over from the planned economy period. Its main purpose is to regulate the transfer of non-performing financial claims, maintain corporate and social stability, prevent the loss of state-owned assets, and protect national economic security. In accordance with the spirit and purpose of the Minutes, cases involving disputes over the transfer of financial non-performing claims by debtors of non-state-owned enterprises should also apply with reference to the provisions of the Minutes."
The Supreme People's Court's Reply on Whether Non-financial Institutions Can Claim Full Creditor's Rights to Debtors of Non-state-owned Enterprises after Assigning Financial Non-performing Creditor's Rights (2013) "Hubei Provincial Higher People's Court:(1) Whether Non-financial Institutions Can Claim Future Interest from Debtors of Non-state-owned Enterprises in the Execution Procedure for Assigning Financial Non-performing Creditor's Rights Determined by Effective Legal Documents, it should be dealt with in the spirit of the" Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims by the Supreme People's Court. (2) According to Article 12 of the Minutes, the Minutes are not retroactive. Prior to the publication of the Minutes, if an institution or individual of a non-financial asset management company is transferred to a financial non-performing claim determined by a legal instrument in force, or if the transferred financial non-performing claim is determined by a legal instrument in force, interest prior to the date of publication shall be calculated in accordance with the relevant legal provisions; interest shall not be accrued after the date of publication. After the publication of the Minutes, if an institution or individual of a non-financial asset management company is transferred to a financial non-performing debt determined by a legal instrument in force, the interest prior to the date of transfer shall be calculated in accordance with the relevant legal provisions; no interest shall be accrued after the date of transfer."
legal analysis
In this case, the claim is a financial non-performing claim, and after the transfer of the financial non-performing claim, can the transferee claim interest after the transfer?
According to Article 9 of the Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims, the People's Court shall not support the assignee's claim to the debtor of a state-owned enterprise for interest incurred after the date of the transfer of non-performing claims. At the same time, Article 12 of the Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Credits has clear provisions on the scope of application of the minutes. The judicial policies involved in the minutes have their specific historical background and are specific to the specific time period. Special provisions are made for the transfer of financial non-performing claims by specific subjects. According to the facts of this case, the transfer of creditor's rights in this case occurred in 2020 and 2021. Jilin bank transferred the creditor's rights to Jilin branch of great wall assets company, and Jilin branch of great wall assets company transferred the creditor's rights to Shanghai chengfan partnership in March 2021. its specific form and time of occurrence do not belong to the policy bad creditor's rights stipulated in the minutes of the symposium on the trial of cases involving the transfer of financial bad creditor's rights, the provisions of the "Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims" could not be applied, so the plaintiff had the right to require the defendant Zhongcheng Separation Machinery Company to pay interest on the loan and interest on overdue payments in accordance with the provisions of the original contract.
Lawyer Tips
When acquiring financial non-performing claims, the transferee of financial non-performing claims should pay special attention to the relevant subjects and time of financial non-performing claims in order to determine a reasonable purchase price and avoid claiming that interest is not supported by the debtor.
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