After the new regulations on private lending are issued, what kind of lending behavior is legal and relatively safe has attracted much attention.

　　Pursuant to the "Regulations of the Supreme People's Court on Several Issues Concerning the Application of Laws to the Trial of Private Lending Cases" (hereinafter referred to as the "Regulations"), the one-year loan market quotation interest rate issued by the National Interbank Funding Center ( LPR) 4 times as the standard, to determine the upper limit of judicial protection of private lending interest rates, replacing the original "Regulations" of "two lines and three areas based on 24% and 36%."

　　Taking the one-year loan market quote rate of 3.85% released on August 20, 2020 as an example, the upper limit of judicial protection for private lending rates is 15.4%, the same as last month.

　　Compared with the previous two-tier interest rates of 24% and 36%, the substantial reduction of the upper limit of judicial protection for private lending rates will help reduce the financing costs of small, medium and micro enterprises.

But will it be more difficult for companies to obtain funding?

What traps should individuals and enterprises avoid in the process of private lending?

　　Guard against new risks

　　From a legal point of view, private lending refers to the conduct of financing between natural persons, legal persons, and other organizations.

As long as the intentions of both parties are true, it can be determined to be valid, and the mortgage generated by the loan is valid accordingly, but the interest rate shall not exceed the relevant interest rate set by the People's Bank of China.

　　Li Youxing, deputy dean of the Internet Finance Research Institute of Zhejiang University, told reporters: “Loans from banking financial institutions are not private lending. A formal institution that does private lending business must meet two conditions. The first is to obtain a legal business qualification (license). The second is to limit the lending rate within the legal scope."

　　“Actually, the judicial protection interest rate is not equal to the actual operating interest rate of the private sector. It means that if the party goes to court to sue, then the part of the interest rate exceeding 15.4% will be considered invalid.” Li Youxing said, but the general principle of law enforcement Ignore it, "That is to say, in fact, in private lending, if you agree and I will negotiate, and finally execute it, there will be no disputes, and the law will not interfere."

　　The sharp drop in private lending interest rates will cause risks?

Jiang Shougen, general manager of Zhejiang Qingche Shulu Technology Co., Ltd., said: "The private lending rate is compressed to such a low range, and some institutions may adopt some bad methods to chase profits. Whether it will trigger "routine loans" or other bad patterns requires close observation. "

　　Li Youxing also believes that private lending may "change" in the future. "I have learned that some companies say that the borrowing interest rate is low, so they can use the name of the sale of goods to enter into contracts, or use credits, debts, gifts, etc. Moreover, once interest rates become lower and customer demand increases, interest rates will still rise."

　　Traps

　　In addition to the "Regulations" mentioned in the "Lenders who have not obtained the qualifications for lending in accordance with the law, who provide loans to unspecified social objects for the purpose of profit" should be deemed invalid, what other circumstances are the contracts invalid?

　　Lawyer Yang Jiajie from Shanghai Zhengyuan Law Firm told reporters: “One is that in the process of private lending, only debit notes but no transfer records can prove the transfer of funds, and the petition may not be supported; the other is in the process of lending. In the event of fraud, coercion, etc., the contract will be directly deemed invalid."

　　Within the scope of private lending, if the borrower is a small, medium or micro enterprise, what risks should be avoided?

　　"In private lending, the two situations in which the company borrows from individuals will be deemed invalid by law." Lawyer Yang Jiajie said, "The first is that the company borrows from an unspecified object in society. It may also constitute illegal absorption of the public. Deposit crime. The second is that if a company borrows from internal employees, this behavior is generally not considered as the crime of illegally absorbing public deposits. However, if the borrowing behavior meets the criminal constitution of the crime of fundraising fraud, not only will the contract be deemed invalid, but the company will also have to bear it. Corresponding criminal responsibility."

　　If a small, medium and micro enterprise borrows from another enterprise, how should it be determined from the law?

"If an enterprise borrows from an enterprise, it must ensure that the source of the loan to the enterprise must be legal, and the interest rate cannot exceed the upper limit of the new regulations." Lawyer Yang Jiajie said.

　　If the borrower in private lending is an individual, what traps need to be guarded against?

　　Lawyer Yang Jiajie said: "In practice, in order to achieve the purpose of raising interest rates, the lender may stipulate other expenses in the contract, such as liquidated damages, late payment fines, dunning fees, overdue interest rates, etc., but the total cost exceeds the upper limit of the new regulations. , The people’s court will not give support."

　　Attorney Yang Jiajie also reminded that it is necessary to prevent some professional borrowers from setting up so-called investment companies and asset management companies to engage in illegal loans in the form of corporatization.

　　Author: Zou Zhen Jie