Financial market is a mixed bag of rational loans in accordance with laws and regulations

　　□ Our reporter Huang Hui

　　□ Correspondent Tao Ran

　　With the continuous development of the financial industry, various “black intermediaries” and “illegal intermediaries” have begun to appear in the loan market. Through the so-called loan intermediary services full of “routines”, high intermediary fees charged by borrowers have increased financing risks. Disrupting the credit order and infringing on the legitimate rights and interests of borrowers, the chaos of "routine loans" requires urgent attention.

　　In many cases of financial loan contract disputes tried by the Second Financial Court of Nanchang City, Jiangxi Province, the debtor may confuse the intermediary fee with the beheading interest, or believe in the "blank cheque" promised by the loan intermediary, or fail to preserve the evidence related to the intermediary. , Which ultimately led to the legal consequences of losing the lawsuit.

A reporter from the "Rules of Law Daily" sorted out such cases, with the aim of interpreting the law through the case, so that everyone could be warned.

　　Intermediary fees are not beheading interest

　　Proof cannot be at your own risk

　　In June 2018, Xu received a call from a loan intermediary, claiming that he was an insider of a bank and could help with low-interest loans.

Due to the urgent need for money, Xu signed a "Personal Business Loan Contract" with a bank under the coordination of the loan intermediary, with an agreed loan amount of 150,000 yuan and a loan period of 1 year.

After the contract was signed, a bank fulfilled its obligation to issue loans and issued a loan of 150,000 yuan in accordance with the agreement.

After Xu received the entire loan of 150,000 yuan, he paid the loan intermediary fee of 7,500 yuan by himself.

After the loan period expired, because Xu failed to repay the loan principal and interest on time, a bank sued him to the court.

　　During the trial, Xu argued that the loan intermediary had claimed to be an insider of the bank and could help him go through the green channel to quickly complete the loan procedures.

In actual operation, the intermediary colluded with inside and outside the bank and charged its own loan intermediary fee of RMB 7,500.

For this reason, Xu advocated that the cost should be deducted from his loan principal.

　　The court held that the loan intermediary fee is not a "cut head interest" and does not need to be deducted from the loan principal.

The bank has fulfilled its obligation to issue loans without fault.

The intermediary service contract relationship between Xu and the loan intermediary and the financial loan contract in this case are two different legal relationships. Therefore, the 7,500 yuan loan intermediary fee involved in the case is not within the scope of the trial and cannot be deducted from the loan principal. .

Accordingly, the court ordered the defendant to return the loan principal of 150,000 yuan plus interest and penalty interest in accordance with the law.

　　The undertaking officer stated that the loan intermediary fee is different from the "cut head interest", and the payment time of the two is different. The "cut head interest" refers to the situation where the interest is deducted from the principal in advance.

In this case, after Xu received the loan, he paid the loan intermediary fees on his own, which cannot be regarded as a "cut-off interest."

At the same time, the payment object of the "cut head interest" is different from the loan intermediary fee. The "cut head interest" is generally collected directly by the lender, while the loan intermediary fee in this case is paid to the loan intermediary who is the person outside the case.

"Head-cutting interest" is clearly prohibited by law and should be deducted from the principal. However, the loan intermediary fee in this case is not "head-cutting interest", and there is no evidence to prove the existence of internal and external collusion. Xu should bear the consequences of not being able to provide evidence.

　　Gullible advertising is routinely loaned

　　Argument for invalid debt service

　　In September 2019, Zhao "ran into" a loan intermediary when he was working at a bank, and heard that the loan intermediary made attractive advertisements and promises such as "unsecured, unsecured, regular company, internal people, and same-day loans". He was in urgent need of use Zhao, who paid the loan, went through the “green channel” under the coordination of the loan intermediary to go through the loan procedures, and signed the “Personal Credit Agreement” and “Personal Revolving Loan Expenditure Form” with a bank, applied for a loan amount of 700,000 yuan, and determined the loan interest rate and term An agreement was made.

After the contract was signed, a bank issued the loan as agreed, but Zhao failed to repay the principal and interest of the loan as agreed.

For this reason, a bank sued Zhao to the court, and Zhao still owed a bank a principal of 700,000 yuan and corresponding interest and penalty interest of 7417.17 yuan at the time of the lawsuit.

　　During the trial, Zhao believed that the bank had colluded inside and outside and charged him a loan intermediary fee of 20,000 yuan, but he did not know the specific name of the loan intermediary.

　　The court held that a bank has fulfilled its loan origination obligations and was not at fault.

As a person with full civil capacity, Zhao voluntarily paid intermediary fees to others, which is his free punishment behavior.

Moreover, Zhao and the loan intermediary formed an intermediary service contract relationship, and the financial loan contract relationship in this case belonged to two different legal relationships. Zhao could collect evidence and claim separately from the loan intermediary.

Accordingly, Zhao's defense was not accepted by the court and ordered Zhao to return the remaining loan principal of 700,000 yuan and related interest and penalty interest.

　　The official court said that illegal intermediaries are full of routines, often with attractive advertisements, using customary solicitation methods such as "zero interest," "low interest loans," "free processing," and "whitewashing of credit", to take advantage of people's desire for low interest rates and an urgent need for loans. The mentality of using telephone bombing, bank door encounters, etc., by charging various fees such as service fees, management fees, consulting fees, or handling midway "markups", etc., set up loan scams and arbitrarily charge borrowers high fees.

Therefore, the general public must keep their eyes open when making loans, and must go to formal banks to handle loan procedures in accordance with laws and regulations, and must not listen to all kinds of loan intermediaries fooling around and falling into the routine of loan fraud.

　　Loan for the elderly playing mahjong

　　Unknown truth deceived ten thousand yuan

　　In July 2019, He received a call from an intermediary company and learned that after paying a certain percentage of loan intermediary fees, he could help with bank loans.

Because He lacked funds to play mahjong, was older and had a weak sense of risk, he agreed to the intermediary to help him with the loan procedures.

Subsequently, under the instructions of the intermediary, He signed the "Personal Online Consumer Loan Loan Contract" with a bank and obtained a bank loan of 44,800 yuan.

After the loan was issued, the intermediary helped He receive a bank card, swiped the card to consume 9,828 yuan, and informed He that the amount was a one-time interest charged by the bank.

He, who was eager to take out a loan to play mahjong, didn't care, and paid a loan intermediary fee of 1,792 yuan separately according to the proportion of 4% of the loan amount agreed by both parties.

So far, He has a loan of 44,800 yuan and an intermediary fee of 11,620 yuan, which is 33,180 yuan.

He then failed to repay the bank loan on time and was involved in the lawsuit.

　　The court held that with regard to He’s defense that the intermediary fee reached 11,620 yuan, first, because He voluntarily handed over the bank card to the intermediary for consumption of 9,828 yuan and WeChat payment of 1,792 yuan, a bank was not at fault for this; second, He said that he paid 9828 yuan is the one-time interest charged by the bank, which is inconsistent with the interest payment method of monthly interest payment as agreed in the contract; third, the fact that He Mou claims to pay the intermediary fee is not supported by evidence, and he should bear the burden of proof Legal Consequences.

Accordingly, He Mou's defense was not accepted by the court and ordered He Mou to return the loan principal of 44,800 yuan and interest in full.

　　According to the official court, the borrowers in such cases are all natural persons, most of whom are older, or have low educational level, or do not have a formal job and are in urgent need of money; general legal knowledge is relatively lacking, risk prevention awareness is poor, and evidence preservation awareness Insufficient, and the credit concept is relatively weak, and the legal risk caused by illegal loan intermediary is insufficiently estimated.

Among the five cases of this kind accepted by the court in 2021, three were senior citizens over 50 years old, four had diplomas below high school, and none of the five had a formal job.

　　The lover pretends to apply for a card overdraft

　　Suspected of crime transferred to the police

　　Liao's credit card was involved in a lawsuit because he defaulted on the loan principal and interest of more than 40,000 yuan.

During the trial, Liao stated that the signature on the credit card application form involved in the case was not his own signature, and that someone else used his name to sign, and that Liao did not hold the credit card involved in the case and was making purchases.

After comparing the handwriting, Liao's signature is obviously different from the signature on the application form.

When the judge further asked why his identity information was leaked to others, Liao hesitated to say that his ID card was not well kept, and his lover who was living with him at the time used his credit card under the false name of his ID card. Now he can't remember his specific name and Whereabouts.

　　Upon review, the court found that Liao did not overdraft the credit card involved in the case and did not need to be liable for the overdraft of the credit card involved.

The credit card was not applied for and used by Liao, but the lover who lived with him falsely used his name to handle the credit card. This case is suspected of economic crime.

According to the law, if it is deemed that it is not an economic dispute case and is suspected of an economic crime, it shall be ruled to reject the prosecution, and the relevant materials and clues of the case shall be transferred to the public security organ for handling in accordance with the law.

　　According to the official court of the Regulations, the frequent occurrence of credit card fraud is due to the fact that the general public does not properly keep their identity information, which gives criminals an opportunity; on the other hand, when some banks are eager to expand their credit card business, they "value quantity." "No emphasis on quality" related to the existence of loopholes in review and approval and being used by criminal suspects, causing losses to the general public and banks.

For this reason, the public should be educated and reminded to increase their awareness of credit card risk prevention, and to properly keep the original personal ID card to prevent loss.

At the same time, it is recommended that banks should strengthen the management of the application process, stick to the first line of defense of credit card handling "seeing by three relatives", and do a good job in video image collection to avoid recurrence of similar cases.

　　Relevant provisions of the Civil Code

　　Article 670 The interest on the loan shall not be deducted from the principal in advance.

If the interest is deducted from the principal in advance, the loan shall be returned according to the actual loan amount and the interest shall be calculated.

　　Article 671 If the lender fails to provide the loan on the agreed date and amount, causing losses to the borrower, it shall compensate for the loss.

If the borrower fails to collect the loan on the agreed date and amount, it shall pay the interest on the agreed date and amount.

　　Article 672 The lender may inspect and supervise the use of the loan in accordance with the agreement.

The borrower shall provide the lender with relevant financial accounting statements or other materials on a regular basis in accordance with the contract.

　　Article 676 If the borrower fails to repay the loan within the agreed time limit, it shall pay overdue interest in accordance with the agreement or relevant state regulations.

　　Article 962 The intermediary shall truthfully report to the client on matters related to the conclusion of the contract.

　　Where an intermediary deliberately conceals important facts related to the conclusion of the contract or provides false information, which damages the interests of the principal, it shall not request payment of remuneration and shall be liable for compensation.

　　Judge Comments

　　With the development of society, the change of residents' consumption concepts and the strengthening of investment awareness, the demand and scale of loans have increased year by year, and the loan intermediary industry has also developed rapidly.

Intermediary fee is a legal fee item, as long as it does not exceed the standard, the law will support it.

Because there are indeed some expenses incurred during the loan process, such as insurance premiums, agency fees, license fees, hospitality fees, etc., it is legal for loan intermediary companies to charge intermediary fees.

However, it can be seen from the cases of this issue that many loan intermediaries are full of "routines" and mixed. The industry has been widely criticized because of the chaos of "black intermediaries" and customers' incomprehension of the value of the industry.

The main problems are as follows: First, loan intermediaries set up loan scams by charging various fees such as service fees, management fees, consulting fees, or processing mid-way "markups", and arbitrarily charge borrowers high fees far beyond the original agreement.

The second is that borrowers have weak legal awareness, often unable to provide collateral by themselves, guarantors, or their own creditworthiness problems and unable to make normal loans, coupled with poor risk prevention awareness, and relatively weak credit concepts, it is easy to trust the "bad checks" promised by loan intermediaries.

The third is the high cost of loan intermediary.

The borrower must pay a certain amount of deposit, service fee, membership fee in advance, or after the bank loan is taken, the bank card must be kept by an intermediary company, and the bank card will be returned to the borrower after deducting the high intermediary fee.

　　Therefore, the standardization, standardization, transparency, and large-scale operation of the loan intermediary industry is the general trend. For this reason, the judge suggested: First, strengthen law popularization. Establish a correct consumption concept, go to a formal bank to handle loan procedures in accordance with laws and regulations, live within your means, and borrow rationally. The second is to strengthen the crackdown. Increase efforts to crack down on and punish "black intermediaries" and purify the credit market environment so that illegal loan intermediaries have no breeding ground. The third is to broaden the right to relief channels. Once you fall into the "black intermediary" loan trap, you should keep relevant evidence and use legal weapons to recover losses through timely reporting to the public security organs and court prosecutions.