China-Singapore Jingwei Client, October 13th (Wei Wei) On August 20th, the adjustment of the upper limit of judicial protection of private lending interest rates was implemented, which was a sharp drop from the "two lines and three districts" based on the previous 24% and 36% To four times the one-year loan interest rate LPR.
Prior to this, a judicial judgment issued by Ping An Bank and borrowers triggered widespread discussions, and whether the new regulations on private lending apply to financial institutions once again became the focus.
At present, the judgment has been withdrawn from the Judgment Document Network.
Recently, the Judgment Document Network has intensively disclosed a batch of judgments. In many judgments involving banks, consumer finance and other financial institutions and borrowers, the interest and penalty interest judged by the court are set at a monthly interest rate of 2% (ie, annual interest rate). 24%) Standard implementation.
Many courts temporarily set the 24% ceiling
On August 27, the People's Court of Ouhai District, Wenzhou City, Zhejiang Province, ruled that the borrower Hong Mou paid the loan, interest, and overdue interest to the Wenzhou branch of Ping An Bank, a licensed financial institution, and should pay the loan interest rate at 4 times the LPR.
Sino-Singapore Jingwei Client learned from the People's Court of Ouhai District, Wenzhou City that the plaintiff, Wenzhou Branch of Ping An Bank, has appealed to the Wenzhou Intermediate People's Court.
The controversy triggered by this case continues. Do financial institutions such as banks and consumer finance companies apply the LPR 4 times cap?
The discussion is a matter of discussion. In a number of recent judgments involving financial institutions, the court still supports the 24% annual interest rate limit.
The People’s Court of Dongxing District, Neijiang City, Sichuan Province (2020) Chuan 1011 Minchu No. 3168 Civil Judgment shows that the court opened the case on August 14, 2020, and ruled that the borrower should repay the interest of the borrower to the plaintiff, Bank of China Consumer Finance, of RMB 2119.97 (March 7, 2018) From June 1, 2018 to May 31, 2018, using 48,943.05 yuan as the base, calculated at an annual interest rate of 18.60%), and from June 1, 2018, using the outstanding loan principal of 76,725.12 yuan as the calculation base, interest and delay The total fee is calculated based on the monthly interest rate of 2%, until the date of payment of the loan principal).
The People’s Court of Luyang District, Hefei City, Anhui Province (2020) Wan 0103 Minchu 9413 Judgment shows that regarding interest and penalty interest after June 16, 2020, the plaintiff Huarong Consumer Finance Co., Ltd. advocates that the entire outstanding principal shall be The base number is calculated at the standard of 24% annual interest rate until the payment is settled. It does not exceed the contractual agreement and does not violate the law. The court supports it.
In the end, the court ruled that the borrower should repay the principal of Huarong Xiaojin’s loan of RMB 116,000, interest of RMB 1,3095.66, and penalty interest of RMB 3,177.56 (Interest and penalty interest are temporarily calculated until June 16, 2020, and then the entire outstanding principal is used as the base. (According to the standard of 24% annual interest rate, it will be consolidated and calculated to the date of payment).
The date of the judgment is September 16, 2020.
The Civil Judgment of the People’s Court of Luohu District, Shenzhen, Guangdong Province (2020) Guangdong 0303 Minchu No. 10577 shows that the defendant should repay the plaintiff, China Guangfa Bank Co., Ltd. Shenzhen Branch, for the principal amount of RMB 195,200, interest of RMB 4033.56 and penalty interest of RMB 4,130.56 RMB 166.30 yuan, compound interest (tentatively calculated until March 12, 2020, after that, according to the contract and the provisions of the People’s Bank of China until the payment is made, but the total interest and compound interest shall not exceed the annual interest rate of 24%).
The above cases are not difficult to see that the judgments made by different local courts still support the calculation of interest and late payment fees of financial institutions at an annual interest rate of 24%.
Why do the judgments of financial institutions have different results?
"Under the same legal norms, the emergence of'different judgments in the same case' is related to the fact that the parties provide different evidence, the people involved in determining the outcome of the judgment have different understandings, and the stage of the judge's understanding." Lawyer of Beijing Jingshi Firm Meng Bo pointed out to the Sino-Singapore Jingwei client.
Attorney Li Min, a senior partner of Shanghai Hansheng Law Firm, believes that there are three main reasons. First, there are inconsistencies in the interpretation of the "Regulations on the Application of Laws to the Trial of Private Loan Cases" (hereinafter referred to as the new regulations) by the local courts; It is that judges have a certain degree of discretion; third, the basic facts such as the loan time and acceptance time of different cases are different.
For example, the new regulations clearly stipulate that their scope of application is "newly accepted cases of private lending disputes in the first instance by the People's Court" after August 20, 2020.
Therefore, under normal circumstances, private lending cases that have been accepted in the first or second instance (before August 20, 2020) cannot claim that the interest rate shall not exceed 4 times the LPR when the contract is established under the new regulations.
In addition, the new regulations clarify that "financial institutions and their branches established with the approval of the financial regulatory authorities to engage in loan business shall not apply to these regulations for disputes arising from the issuance of loans and other related financial businesses."
Therefore, Li Min tends to believe that financial institutions do not apply the 4 times LPR cap.
However, Zhang Kai, an analyst in the financial industry of Analysys, pointed out that even if the court supports licensed financial institutions to borrow at an annualized interest rate of 24% in the future, considering that the interest rate of private lending has been lowered, in order to ensure the competitiveness of its own business, The borrowing rates of licensed financial institutions such as consumer finance companies may also be adjusted in the future.
Industry: Copycat borrowing APP or resurgence
After the upper limit of judicial protection of private lending interest rates was lowered, many financial institutions were caught in entanglement.
On the one hand, the judicial interpretation is clear that licensed financial institutions do not apply this judicial interpretation; on the other hand, in the general public perception, the lending interest rate of financial institutions should not be higher than private lending.
An practitioner from a consumer finance company told the Sino-Singapore Jingwei Client that in the future, the company will further increase its risk control if it is judged at 4 times the LPR in the future, "it has been adjusting this year and imports have become stricter."
Another consumer finance company practitioner said frankly that the consequence of a sharp cut in interest rates is that there is less and less supply on the supply side, which leads to borrowers not being able to borrow money from licensed financial institutions, and underground banks and copycat borrowing apps may come back to life and take advantage of the situation. And into.
In addition, compared with banks and consumer financial institutions that are clearly financial institutions, the identities of microfinance companies and financial leasing companies are in an awkward position.
A practitioner of a small loan company said, "It is currently in a half-closed state, and we have to wait and see for a while."
A survey report on the industry impact of the Guangdong Provincial Microfinance Association obtained by the Sino-Singapore Jingwei client shows that 64.29% of the small and micro enterprises and natural persons surveyed are worried that small loan companies will raise the barriers to entry in order to meet the new regulations on lending interest rates. And risk control measures, resulting in its inability to obtain financial support.
For example, in the research report, there was a case in which Ms. Chen, a self-employed business owner, and her husband ran a fast food restaurant. Previously, due to the impact of the new crown pneumonia epidemic, all liquid funds were used to pay for rent, management fees and inventory.
After the epidemic stabilized, Ms. Chen and his wife planned to simply decorate the store. In addition to fast food accidents, they also planned to do a midnight snack business at night, so they applied for an operating loan of 80,000 yuan from a small loan company.
Originally, the small loan company had inspected the fast food restaurant operated by Ms. Chen and completed the contract. However, affected by the "Decision", the small loan company informed Ms. Chen that it would suspend the issuance of the operating loan.
At present, Ms. Chen can only borrow some money from relatives to purchase ingredients, and the shop decoration can only be postponed.
"The legal status of small loan companies and whether the upper limit on private lending interest rates is applicable is controversial in the industry and academia. At present, small loan companies are being included in local financial supervision. Therefore, consideration can be given to treating small loan companies as financial institutions. Lending interest rate ceiling regulation.” Dong Ximiao, chief researcher of Zhongguancun Internet Finance Research Institute, wrote in an earlier article.
Dong Ximiao said that in judicial practice, some local courts have determined that there is no upper limit on interest rates for loans from financial institutions in accordance with the central bank's rules, and some local courts have restricted financial lending behavior with upper limits on private lending interest rates, resulting in a "dual-track system" of interest rate ceiling control policies.
As a result, different courts and judges at different levels have different positions, and the results of judgments on the same case are often different.
It is hoped that the Supreme Court will emphasize this, and form a unified guidance for the local courts, so as to reduce the troubles caused to financial institutions due to different enforcement standards.
Meng Bo also believes that in order to unify the judgment standards of the local courts, the Supreme People's Court must issue more detailed operating guidelines for the new regulations on the upper limit of judicial protection of private lending interest rates.
(Zhongxin Jingwei APP)
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