Viewpoint | Three Private Lending Cases and Typical Significance
Published:
2021-12-25
Case one: Li mou and sun mou are friends. On August 6, 2017, Li and Sun signed a loan contract. The two parties agreed that Sun requested a loan from Li for business activities. The amount of money Li lent to Sun was 240000 yuan, and the loan period was 12 months., From August 6, 2017 to August 5, 2018. The two sides agreed to an annual interest rate of 18%, that is, the annual interest of 43200 yuan. After the expiration of the term, Sun did not repay the principal and interest, and Li sued to the court, demanding Sun to repay the principal of the loan of 240000 yuan, the interest of 43200 yuan, and the overdue interest from August 6, 2018 to the date when the principal of the loan was actually paid. The court held that the interest of 43200 yuan during the loan period claimed by Li mou was in line with the contract and did not violate the legal provisions. the court supported it according to law. Overdue interest, based on the principal of 240000 yuan, is calculated at four times the one-year loan market quotation rate issued by the National Interbank Funding Center authorized by the People's Bank of China, and the excess is not supported. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (amended on December 23, 2020), the people's court shall support the newly accepted first-instance private lending cases after August 20, 2020, the loan contract was established before August 20, 2020, and the parties request to apply the judicial interpretation at that time to calculate the interest part from the establishment of the contract to August 19, 2020; for the portion of interest from August 20, 2020 to the date of return of the loan, the standard of interest rate protection under this provision at the time of prosecution is applied. In other words, using August 20, 2020 as the dividing line, interest is calculated after that point at four times the LPR at the time the contract was established, and exceeding that interest rate cap is an illegal debt and is not protected. Case two: Wu Mou and Duan Mou are friends. On October 19, 2018, Duan wrote an IOU for Wu Mou, stating that "Duan borrowed 200000 yuan from Wu Mou today, with an annual interest rate of 24%.". On the same day, Wu Mou transferred money to Duan 200000 yuan. After a refusal to repay the loan and interest, Wu filed a lawsuit with the court, requesting an order to return the principal of Wu's loan of 200000 yuan. Pay the loan interest of 87978 yuan from October 20, 2018 to August 19, 2020 calculated according to the annual interest rate of 24%. Pay the loan interest from August 20, 2020 to the actual repayment date, calculated at four times the market quoted interest rate for one-year loans. After hearing, the court held that Wu Mou transferred 200000 yuan to Duan Mou, Duan Mou issued an IOU for Wu Mou, and a private lending relationship was formed between Wu Mou and Duan Mou. Wu has filed lawsuits in the city's courts many times within two years. Combined with the interest and other expenses he agreed or actually received, Wu should be determined to constitute a professional lender, and the loan relationship between Wu and Duan is invalid. In addition to repaying the principal, Duan should also pay Wu's interest loss, based on 200000 yuan, calculated according to the loan market quotation interest rate published by the National Interbank Lending Center, from October 20, 2018 to the actual payment date. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, if a lender fails to obtain the qualification for lending in accordance with the law and repeatedly engages in paid private lending for many times within a certain period of time, it can generally be determined to constitute a professional lending act. Professional lending is business and for-profit. According to the law, combined with the trial practice, the same plaintiff or related plaintiff filed more than 5 private lending cases with the city's courts within two years, or the lender lends funds to the society for more than 3 times within two years, it can generally be determined that the lender's lending behavior is commercial. Private lending contracts formed as a result of professional lending practices are invalid. The borrower shall return the principal of the loan and the loss of interest during the period of occupation of the funds. Interest losses should generally be calculated in accordance with the loan market quotation rate published by the National Interbank Lending Center, and cannot be calculated in accordance with the high interest standard agreed in the private lending contract. Case three: Qi and Sun are friends. From February 21, 2019 to July 9, 2019, Qi transferred money to Sun's account four times, totaling 620000 yuan. Qi thought that Sun borrowed money from him on the grounds of business working capital, so Qi filed a lawsuit to order Sun to return the loan of 620000 yuan and pay the interest calculated according to the loan interest rate for the same period published by the National Interbank Lending Center, from March 26, 2021 to the date of actual payment. The defendant Sun a defense between the two sides is not a loan relationship but a partnership. The plaintiff Qi held an electronic transfer receipt, WeChat screenshots, short messages, telephone recordings, etc., claiming that there was a loan relationship between the two parties. The court held that the evidence of the partnership provided by the defendant Sun and the testimony of witnesses were not sufficient to prove that the two parties were in a partnership. Therefore, it is determined that there is a private lending relationship between the two parties, and the defendant Sun should repay the plaintiff Qi's principal of RMB 620000 yuan and interest. Typical meaning: Article 14 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases stipulates that "the plaintiff shall file a private lending lawsuit on the basis of creditor's rights documents such as IOUs, receipts and IOUs, and the defendant shall file a defense or counterclaim on the basis of the basic legal relationship, And provide evidence to prove that the creditor's rights dispute is not caused by the private lending behavior, The people's court shall try in accordance with the basic legal relationship." Article 16 stipulates: "If the plaintiff files a private lending lawsuit only on the basis of the transfer voucher of the financial institution, and the defendant defends that the transfer is to repay the previous loan or other debts of both parties, the defendant shall provide evidence to prove its claim." Article 73 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "If both parties adduce opposite evidence to the same fact, but there is no sufficient basis to deny the evidence of the other party, the people's court shall, in light of the circumstances of the case, judge whether the probative force of the evidence provided by one party is obviously greater than that of the evidence provided by the other party, and confirm the evidence with greater probative force." In this case, the proof of the evidence provided by the defendant Sun for the partnership between the two parties is not significantly greater than the proof of the evidence provided by the plaintiff Qi. The defendant Sun's defense claims have many doubts and are not supported.
Case one:
Li mou and sun mou are friends. On August 6, 2017, Li and Sun signed a loan contract. The two parties agreed that Sun requested a loan from Li for business activities. The amount of money Li lent to Sun was 240000 yuan, and the loan period was 12 months., From August 6, 2017 to August 5, 2018. The two sides agreed to an annual interest rate of 18%, that is, the annual interest of 43200 yuan. After the expiration of the term, Sun did not repay the principal and interest, and Li sued to the court, demanding Sun to repay the principal of the loan of 240000 yuan, the interest of 43200 yuan, and the overdue interest from August 6, 2018 to the date when the principal of the loan was actually paid. The court held that the interest of 43200 yuan during the loan period claimed by Li mou was in line with the contract and did not violate the legal provisions. the court supported it according to law. Overdue interest, based on the principal of 240000 yuan, is calculated at four times the one-year loan market quotation rate issued by the National Interbank Funding Center authorized by the People's Bank of China, and the excess is not supported.
Typical meaning:
According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (amended on December 23, 2020), the people's court shall support the newly accepted first-instance private lending cases after August 20, 2020, the loan contract was established before August 20, 2020, and the parties request to apply the judicial interpretation at that time to calculate the interest part from the establishment of the contract to August 19, 2020; for the portion of interest from August 20, 2020 to the date of return of the loan, the standard of interest rate protection under this provision at the time of prosecution is applied. In other words, using August 20, 2020 as the dividing line, interest is calculated after that point at four times the LPR at the time the contract was established, and exceeding that interest rate cap is an illegal debt and is not protected.
Case two:
Wu Mou and Duan Mou are friends. On October 19, 2018, Duan wrote an IOU for Wu Mou, stating that "Duan borrowed 200000 yuan from Wu Mou today, with an annual interest rate of 24%.". On the same day, Wu Mou transferred money to Duan 200000 yuan. After a refusal to repay the loan and interest, Wu filed a lawsuit with the court, requesting an order to return the principal of Wu's loan of 200000 yuan. Pay the loan interest of 87978 yuan from October 20, 2018 to August 19, 2020 calculated according to the annual interest rate of 24%. Pay the loan interest from August 20, 2020 to the actual repayment date, calculated at four times the market quoted interest rate for one-year loans. After hearing, the court held that Wu Mou transferred 200000 yuan to Duan Mou, Duan Mou issued an IOU for Wu Mou, and a private lending relationship was formed between Wu Mou and Duan Mou. Wu has filed lawsuits in the city's courts many times within two years. Combined with the interest and other expenses he agreed or actually received, Wu should be determined to constitute a professional lender, and the loan relationship between Wu and Duan is invalid. In addition to repaying the principal, Duan should also pay Wu's interest loss, based on 200000 yuan, calculated according to the loan market quotation interest rate published by the National Interbank Lending Center, from October 20, 2018 to the actual payment date.
Typical meaning:
According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, if a lender fails to obtain the qualification for lending in accordance with the law and repeatedly engages in paid private lending for many times within a certain period of time, it can generally be determined to constitute a professional lending act. Professional lending is business and for-profit. According to the law, combined with the trial practice, the same plaintiff or related plaintiff filed more than 5 private lending cases with the city's courts within two years, or the lender lends funds to the society for more than 3 times within two years, it can generally be determined that the lender's lending behavior is commercial. Private lending contracts formed as a result of professional lending practices are invalid. The borrower shall return the principal of the loan and the loss of interest during the period of occupation of the funds. Interest losses should generally be calculated in accordance with the loan market quotation rate published by the National Interbank Lending Center, and cannot be calculated in accordance with the high interest standard agreed in the private lending contract.
Case three:
Qi and Sun are friends. From February 21, 2019 to July 9, 2019, Qi transferred money to Sun's account four times, totaling 620000 yuan. Qi thought that Sun borrowed money from him on the grounds of business working capital, so Qi filed a lawsuit to order Sun to return the loan of 620000 yuan and pay the interest calculated according to the loan interest rate for the same period published by the National Interbank Lending Center, from March 26, 2021 to the date of actual payment. The defendant Sun a defense between the two sides is not a loan relationship but a partnership. The plaintiff Qi held an electronic transfer receipt, WeChat screenshots, short messages, telephone recordings, etc., claiming that there was a loan relationship between the two parties. The court held that the evidence of the partnership provided by the defendant Sun and the testimony of witnesses were not sufficient to prove that the two parties were in a partnership. Therefore, it is determined that there is a private lending relationship between the two parties, and the defendant Sun should repay the plaintiff Qi's principal of RMB 620000 yuan and interest.
Typical meaning:
Article 14 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases stipulates that "the plaintiff shall file a private lending lawsuit on the basis of creditor's rights documents such as IOUs, receipts and IOUs, and the defendant shall file a defense or counterclaim on the basis of the basic legal relationship, And provide evidence to prove that the creditor's rights dispute is not caused by the private lending behavior, The people's court shall try in accordance with the basic legal relationship." Article 16 stipulates: "If the plaintiff files a private lending lawsuit only on the basis of the transfer voucher of the financial institution, and the defendant defends that the transfer is to repay the previous loan or other debts of both parties, the defendant shall provide evidence to prove its claim." Article 73 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "If both parties adduce opposite evidence to the same fact, but there is no sufficient basis to deny the evidence of the other party, the people's court shall, in light of the circumstances of the case, judge whether the probative force of the evidence provided by one party is obviously greater than that of the evidence provided by the other party, and confirm the evidence with greater probative force."
In this case, the proof of the evidence provided by the defendant Sun for the partnership between the two parties is not significantly greater than the proof of the evidence provided by the plaintiff Qi. The defendant Sun's defense claims have many doubts and are not supported.
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