Viewpoint... Private lending only IOUs but no delivery vouchers, can win the case-the author successfully represented a private lending case.
Published:
2021-02-07
Foreword
The loan approval procedures of banks and other financial institutions are complicated, and the requirements for guarantees are too high. The probability of success for companies or individuals to obtain loans from banks and other financial institutions is not too high. But sometimes due to the urgent need for money, these companies or individuals often through private lending channels to finance, to solve the capital turnover difficulties. However, because private lending often arises between relatives, friends or acquaintances, based on trust, the preparation of evidence for IOUs or deliveries is not complete when lending money. If there are only IOUs, no delivery vouchers, some only transfer vouchers, no written IOUs, and even cash delivery, no IOUs. Usually because of the close relationship between the two parties, and because of the face, often verbally agreed on interest or even not agreed on interest. If both parties can keep their promises and do things in good faith, it will not matter. But once the two sides go to court, whether the actual delivery becomes the main focus of the trial. If there is no evidence of delivery, the lender will lose the lawsuit because of the lack of evidence.
Recently, the author on the agent (defendant) a private lending dispute case, the plaintiff only debit note did not deliver the voucher, the plaintiff's claim was rejected by the court.
Basic case
The plaintiff, an association, filed two claims with the court: to order the two defendants to repay the arrears of 618503 yuan; The two defendants bear all the litigation costs. Facts and Reasons: Defendant Zhang issued an iou to the plaintiff on July 24, 2020, stating that he borrowed 618503 yuan today for the payment of ground rent (2016-2020) and part of the project funds in a certain community. Zhang is the actual control of a certain company, and the money borrowed by Zhang is used by the company to pay ground rent and project funds. The plaintiff repeatedly urged the two defendants to pay the arrears, and the two defendants refused to repay on the grounds that they had no money. Now they file a lawsuit and hope that the judgment will be as requested.
The author represents the defendant to reply:
First of all, the plaintiff is not a suitable subject. Judging from the contents stated in the debit note, it is impossible to determine that the lending subject is the plaintiff. The payment of the rent (2016-2020) and part of the project funds to a certain community is not related to the plaintiff, and the plaintiff has no evidence to prove the purpose of the loan. The court is requested to reject the plaintiff's claim.
Secondly, there is no real private lending relationship between the two parties, because the money involved is not actually delivered, because private lending needs to be delivered in addition to the agreement between the two parties. And the amount of private lending in general is an integer, but the amount of borrowing in this case is specific to single digits. In the current stage of judicial practice, even simple and clear IOUs, involving large amounts of funds also need to prove that the loan funds flow channels, otherwise to bear the adverse consequences of proof can not be. Specifically, in this case, the loan of RMB 618503 yuan is involved, and the amount is relatively large. It is unreasonable to pay in cash, and the receipt stated in the debit note cannot prove that the plaintiff has actually paid the money.
Thirdly, according to Article 19 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases implemented on August 20, 2020, "when the people's court finds the following situations in the trial of private lending disputes, it shall strictly try the cause, time, place, source of funds, mode of delivery, flow of funds, relationship between the borrower and the borrower, economic situation, etc., and comprehensively judge whether it is a false civil lawsuit: ...... The facts and reasons on which the (II) lender is suing are manifestly irrational. According to the above provisions, the court should find that the private lending relationship in this case is not established.
Finally, the debit note only states that the borrower is Zhang, which has nothing to do with a company, and the plaintiff has not provided evidence that the loan involved is used for the company's production or business activities, therefore, the loan has nothing to do with a company, the company should not bear the responsibility of repayment.
After the plaintiff also claimed in court:
Because the two defendants owed a neighborhood committee and its villagers the rent from 2016 to 2020, and at the same time owed the contractor part of the project money, totaling 618503 yuan, they were unable to repay it. However, the villagers and the contractor repeatedly asked the neighborhood committee for this money. Because the facilities built by the two defendants on the above-mentioned land were demolished in March 2020, the higher authorities signed a demolition compensation agreement with Zhang, but did not actually get the money, therefore, the neighborhood committee entrusted the plaintiff to pay the creditors of the debts owed by the two defendants for the above accumulated four years. Zhang promised to repay the money paid by the plaintiff on behalf of the two defendants after receiving the demolition compensation. Therefore, the plaintiff repaid the above money for the two defendants and asked Zhang to issue an iou on July 24, 2020 as a proof of recovering the money from the two defendants afterwards, in this case, the payment by the plaintiff was converted into a loan agreement between the parties, that is, the two defendants issued to it by the loan.
The author rebutted and objected on behalf of the defendant in court:
It is believed that the two defendants did not entrust the plaintiff to pay the rent and project funds on their behalf, and the plaintiff did not provide evidence to prove that the payment was actually made for them, and the contents recorded in the debit note were inconsistent with the plaintiff's statement in court. The two parties did not form a loan agreement. The fact is that the plaintiff did not pay on behalf of the two defendants, and the two defendants did not entrust the plaintiff to pay on their behalf.
Court decisions
The Court held that:
In this case, the plaintiff and Zhang, a company is a private lending dispute. The plaintiff believed that the amount he claimed was a loan arising from the payment for Zhang and a company, and demanded that Zhang and a company repay the loan of 618503 yuan. The plaintiff claimed that because it repaid the land rent and project money owed by the two defendants to a cooperative and a contractor on behalf of the two defendants, it was later converted into a loan from the two defendants, and Zhang issued a debit note. The plaintiff did not submit evidence to prove the fact that it claimed to repay the land rent and project funds on behalf of the two defendants, nor did the evidence submitted by the plaintiff prove that the two defendants had entrusted or instructed the plaintiff to repay the land rent and project funds on behalf of the two defendants, nor could it prove that the two parties had liquidated and agreed to convert the compensation into loans. Therefore, the plaintiff's claim that the two defendants should repay the loan is insufficient evidence and the facts are unclear, and the court will not support it. Dismiss all claims of the plaintiff.
The author agent ideas and strategies
First of all, the author thinks that the key issue in this case is to closely follow the effective elements of the loan contract. Because the private loan contract is a practical contract, to prove the establishment of the loan relationship, one cannot determine the establishment of the loan relationship between the two parties with only one IOU, but also prove that it has indeed paid the loan. The understanding of the effectiveness of the IOU should be accurate.
Secondly, to take a step back, even if the plaintiff claims to be paid on behalf of the plaintiff, the evidence provided by the plaintiff should also form a chain of evidence, and there should be the agreement of both parties to pay on behalf of the plaintiff, which has actually paid on behalf of the plaintiff. Because private lending is a practical contract, that is, the delivery of money as an element, as for direct delivery, possession modification, instruction delivery, simple delivery should provide evidence.
Thirdly, for large cash payments that only provide IOUs, if the borrower raises a reasonable defense of doubt, in addition to reviewing the creditor's rights documents, it should also comprehensively judge and verify whether the lending facts have occurred in combination with facts and factors such as the loan amount, payment delivery, the economic capacity of the parties, local or inter-party transaction methods, transaction habits, and changes in the property of the parties.
Finally, the comprehensive judgment of the evidence of the whole case, the amount of the debit note in this case is specific to single digits, which is inconsistent with the normal practice of private lending transactions, and in the absence of delivery vouchers, the lender should bear the burden of proof on the establishment of the lending relationship. In this case, the plaintiff, as the lender, can not provide sufficient evidence to prove the main facts of whether the loan relationship actually occurred, and there are many inconsistent and contradictory court statements on its claim, the plaintiff should bear the legal consequences of proof.
Article Link
Implementation of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases on August 2, 2020
Article 16 If the plaintiff files a private lending lawsuit only on the basis of debt documents such as IOUs, receipts and IOUs, and the defendant defends that the loan has been repaid, the defendant shall provide evidence to prove its claim. After the defendant provides corresponding evidence to prove its claim, the plaintiff shall still bear the burden of proof for the existence of the loan relationship.
If the defendant's defense of the loan has not actually occurred and can make a reasonable explanation, the people's court shall comprehensively judge whether the loan fact has occurred in combination with the facts and factors such as the amount of the loan, the delivery of the money, the economic capacity of the parties, the local or inter-party transaction methods, transaction habits, changes in the property of the parties and witness testimony.
Article 19 If the people's court dissolves any of the following circumstances when hearing a case of private lending dispute, it shall strictly examine the reasons, time, place, source of funds, mode of delivery, flow of funds, the relationship between the borrower and the borrower, economic conditions and other facts, and comprehensively judge whether it is a false civil action:
(I) the lender clearly does not have the ability to lend;
(II) the facts and reasons on which the lender is suing are manifestly unreasonable;
(III) that the lender cannot submit the creditor's rights certificate or the creditor's rights certificate submitted may be forged;
(IV) both parties to participate in private lending litigation several times within a certain period of time;
(V) the parties refuse to appear in court without justifiable reasons to participate in the proceedings, the entrusted agent is not clear about the facts of the loan or the statements are inconsistent;
(VI) there is no dispute between the parties over the occurrence of the fact of the loan or the pleading is obviously unreasonable;
(VII) the borrower's spouse or partner or other creditors of the outsider to raise a factual objection;
(VIII) the existence of low-cost transfer of property in other disputes;
(IX) the party improperly waives his rights;
(X) other possible cases of false private lending litigation.
Description
After the judgment of this case, the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, which came into effect on January 1, 2021, changed the original Article 16 to Article 15 and Article 19 to Article 18.
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