Frequent private lending disputes, honesty-based financing according to law
□ All-media reporter Zhan Haifeng, Rule of Law Daily
□ Correspondent Zhou Yu
In recent years, the rapid development of private lending has promoted the prosperity of the market economy to a certain extent, alleviated the financing difficulties of small, medium and micro enterprises, enhanced the self-adjustment and adaptability of economic operations, and promoted the formation and development of a multi-level credit market. However, existing problems and risks have gradually emerged, and disputes have increased significantly.
A reporter from the Rule of Law Daily combed through several cases involving private lending accepted by the Fourth Intermediate People’s Court of Chongqing in recent years, with a view to reminding transaction parties to abide by the laws and regulations related to private financing, prevent and resolve private lending risks, and effectively protect the borrowing and lending parties. Legal rights.
Decapitation is to be counted as principal
The second instance revised the verdict to be dismissed
On July 24, 2017, Zhang and his wife Liu issued a copy of "IOU" and "Receipt" to Hu. The "IOU" stated that Zhang and Liu had to submit to Hu due to the needs of project capital turnover. A certain borrowed RMB 150,000, with a monthly interest rate of 5% and monthly interest payments.
The "Receipt" stated that: Hu has received RMB 150 million in cash today.
On the same day, Hu transferred 127,500 yuan to Zhang.
On October 23, 2017, Zhang paid 7,500 yuan in interest to Hu.
Later, because Zhang and Liu failed to repay the contract, Hu filed a civil lawsuit in the court in November 2019, requesting Zhang and Liu to repay the loan principal of 150,000 yuan, interest, and liquidated damages.
Zhang and Liu argued that Hu had deducted 22,500 yuan in advance as the interest for the first three months when paying the loan. Hu actually only provided 127,500 yuan for the loan, but Hu claimed that the other 22,500 yuan was a cash payment.
The court of first instance held that Hu claimed that the principal was 150,000 yuan, including bank transfer of 127,500 yuan and cash payment of 22,500 yuan, and issued "IOUs" and "Receipts" as supporting evidence. It can be determined that Hu lent the principal as 150,000 yuan.
Zhang pleaded that Hu deducted 22,500 yuan for 3 months of "beheading interest", but he did not produce any evidence to support it, and his defense was not accepted.
Zhang and Liu refused to accept the judgment of the first instance and filed an appeal.
After hearing the case, the Fourth Intermediate People's Court of Chongqing Municipality held that although Hu claimed that the 22,500 yuan should be delivered in cash, after Hu’s transfer on the same day, his account still had a balance of 6692.3 yuan, and the transfer of 127,500 yuan was not in line with trading habits.
Zhang's first interest payment time was 3 months after the loan, and the repayment amount was 7,500 yuan. Liu stated that the payment was the fourth month of interest paid.
According to the agreement between the two parties on monthly interest payment and 5% monthly interest rate, it can be mutually confirmed with the fact that the three months of interest is deducted in advance.
Moreover, Hu did not object to Zhang's repayment of 7,500 yuan in interest after 3 months of borrowing, which can prove the fact that Hu had pre-deducted 22,500 yuan in interest.
Accordingly, the second instance revised the judgment in accordance with the law and determined that the loan principal was 127,500 yuan.
The judge later stated that the "cut-off interest" refers to the situation where the loan interest is pre-deducted from the loan principal when the loan is borrowed.
my country's law stipulates that the loan interest cannot be deducted in advance, and the people's court shall determine the loan principal based on the actual loan amount.
In this case, through the analysis of the characteristics of the plaintiff’s loan provision and the defendant’s payment of interest, combined with market transaction habits, it was confirmed that there was a "cut head interest" in this case, which equally protected the legitimate rights and interests of both borrowers and lenders.
Borrowed money for joint operations
Husband and wife sharing debt responsibilities
On October 16, 2013, Tan issued an IOU to Zhang Jia, stating that he needed to borrow 300,000 yuan from Zhang Jia because of the project's capital turnover, and agreed on the interest.
When Tan issued the IOU, his wife Zhang Yi was present.
The next day, Zhang Moujia paid the loan to Tan Mou.
In 2015, Tan and Zhang divorced.
In March 2016, the two parties re-signed the "Loan Contract" to reconfirm the aforementioned loan.
Zhang Moujia and Tan signed their fingerprints on the "Loan Contract". Zhang Mouyi did not show up, but expressed their approval of Tan's signature on the phone.
After that, when Zhang XJ was demanding loans from Tan several times, Zhang XB clearly agreed to repay.
In August 2019, Zhang XA filed a lawsuit with the court because Tan X failed to repay the contract, requesting a judgment that Tan X and Zhang XB jointly repay the loan principal of 300,000 yuan and interest.
Zhang Mouyi argued that the loan was a personal debt borne by Tan Mou in his own name, and he should not be liable for repayment.
The court of first instance held that neither the loan contract nor the IOU was confirmed by Zhang's signature, and the ratification was not carried out afterwards.
At the same time, the evidence provided by Zhang A cannot prove that the loan was actually used for the husband and wife’s joint production and operation or based on the joint intention of the husband and For the personal debts of Tan Mou in his own name, Zhang Mouyi shall not be liable for the repayment of the loan.
Zhang Moujia refused to accept and appealed to the Fourth Intermediate People's Court of Chongqing Municipality.
After hearing the trial, the court of second instance held that the borrowings involved in the case were used for the working capital of the project contracted by Tan, which belonged to family production activities and should be deemed to be used for "joint production and operation" during the duration of the relationship between Tan and Zhang.
At the same time, even though Zhang Mou B did not sign the IOU and the "Loan Contract", Zhang Mou B was clear about the fact that Tan Mou borrowed from Zhang Mou A. When both parties renewed the "Loan Contract", Zhang Mou B was also on the phone. China clearly stated that he recognized Tan’s signature, and when Zhang A requested Tan’s loan, Zhang B also made it clear that he agreed to repay.
Therefore, the borrowing in this case was based on the "representation of the common intentions of the husband and wife", which belonged to the joint debt during the duration of the relationship between Tan and Zhang and should be repaid by the two.
Petition for repayment of love transfer
Special meaning should be a gift
From March to May 2020, Fei transferred a total of 2,7559.8 yuan to Wanmou through WeChat for 17 times in pursuit of Wanmou.
Among them, the amount of multiple transfers was 1314 yuan, 520 yuan, 13.14 yuan, and 5.2 yuan.
Later, due to a conflict between the two parties, Fei asked Wan to return it.
After repeated unsuccessful discussions, Fei filed a lawsuit with the court, requesting Wan to repay his loan of 2,7559.8 yuan.
During the trial, Wan only recognized that 10,000 yuan was a loan, and the remaining transfers were gifts made by Fei in pursuit of him.
The first instance held that in the court hearing, the two parties jointly confirmed that 10,000 yuan was a loan from Wan, and the relationship between creditor's rights and debts was clear and Wan should be repaid.
The remaining 1,7559.8 yuan loan claimed by Fei was confirmed through court hearing and was used for the joint consumption or gift of both parties, which belonged to another legal relationship and was not processed in this case.
It was judged that Wan Mou borrowed 10,000 yuan for repayment of fees and rejected Fei's other litigation claims.
Fei refused to accept and filed an appeal.
The Fourth Intermediate People's Court of Chongqing Municipality held that the transfer amounts of Fei to Wan were 1,314 yuan, 520 yuan, 13.14 yuan, and 5.2 yuan, and the amount and frequency of these transfers did not conform to the general custom of private lending.
Based on the characteristics of the transfer, Wan's claim that Feixou repeatedly transferred funds to him for joint consumption and expressing certain specific meanings is more in line with objective reality and should not be regarded as a loan.
The appeal was rejected and the original verdict was upheld.
The judge stated that this case is a typical case concerning the determination of the nature of economic exchanges between lovers.
It is a common phenomenon for men and women to give money to each other during their relationship. Appropriate gifts of money are conducive to maintaining and enhancing mutual feelings.
In this case, according to the characteristics of the amount of transfers, the transfers with special meanings are recognized as gifts, which conforms to the general public perception and objective reality, and has certain reference significance for the trial of such cases.
Claim borrowing by transfer only
Insufficient evidence is difficult to support
Mr. Wu is the legal representative of Company A, Mr. Chen is an employee of Company A, and Mr. Li is a shareholder and supervisor of Company B. Company A and B have a sales contract relationship.
From June 9th to 10th, 2019, Wu transferred 200,000 yuan to Li.
Wu believed that the transfer was a loan and asked Li to repay it. Li claimed that the transfer was a coal mine fund paid by Company A to a person outside the case, which was entrusted by Company B to be collected.
The negotiation between the two parties failed, so Wu took the bank transfer voucher as the basis and sued the court to request Li to repay the aforementioned transfer.
The court of first instance found that Wu only filed a private lending lawsuit based on the transfer voucher, and Li defended that he was entrusted by the company to accept Wu's transfer and paid the money to a person outside the case for the purchase of raw coal according to the company's instructions, and provided a WeChat chat Evidence such as records and transfer vouchers shall be proved.
In this case, Wu should continue to bear the burden of proof for the establishment of the lending relationship, but Wu did not present other evidence, and should bear the legal consequences of not being able to provide evidence, and the judgment rejected Wu's litigation request.
Wu refused to accept the judgment of the first instance and filed an appeal.
The Fourth Intermediate People’s Court of Chongqing Municipality held that, based on the statements and evidence provided by both parties, it does not rule out the possibility that the money involved in the case occurred due to other reasons by both parties. The evidence presented by Wu cannot prove that the money involved in the case was transferred to Li. The loan should bear the responsibility for the inability to provide evidence, and the appeal was rejected and the original judgment was upheld.
The judge stated that this case is a typical case of whether the private lending relationship is established or not.
According to the provisions of the Civil Procedure Law, the parties have the responsibility to provide evidence to prove the facts they claim in the litigation. The judicial interpretation also makes special provisions for the distribution of the burden of proof in some special circumstances in private lending disputes, which should be strictly in judicial practice. Applicable to ensure the fairness and justice of the burden of proof.
In this case, the distribution of burdens of proof and the application of evidence rules have realized the proper handling of the case in accordance with the law, which is beneficial to prevent false litigation.
Regulation Bazaar
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.
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"
Article 16 The plaintiff only filed a private lending lawsuit based on the transfer certificate of the financial institution. The defendant argued that the transfer was to repay the previous borrowings or other debts of both parties, and the defendant shall provide evidence to prove his claim.
After the defendant provides corresponding evidence to prove its claim, the plaintiff shall still bear the burden of proof for the establishment of the loan relationship.
Relevant provisions of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Marital Debt Disputes
Article 1 The debts incurred by the husband and wife jointly signed by the husband and wife or by one of the husband and wife ratified afterwards shall be deemed as joint debts of the husband and wife.
Article 3 The debts of one spouse that exceed the daily needs of the family during the duration of the marriage relationship, and the creditor claims the rights on the grounds that they belong to the joint debt of the spouse, the people's court will not support it, but the creditor can prove that the debt is used for the spouse Except for living together, producing and operating together, or expressing based on the common will of both spouses.
Lao Hu Comments
Private lending has the advantages of flexibility, simplicity, and speed, and it is widely used in today's economic and social life.
However, due to its randomness and irregularity, it is easy to bury hidden dangers for future disputes and cause legal risks.
From the cases in this issue, we can see that due to the lack of loan agreements, IOUs, or loan agreements, and the vague content of the IOUs, the borrowers and lenders often hold different opinions, and the truth is difficult to find out.
These cases remind people that both parties involved in private lending must be cautious when conducting private lending activities and take precautions.
First of all, the lender should enter into a written loan agreement with the borrower, specifying the names of the borrower and lender, the type of loan, currency, amount, time, term, purpose, interest rate, repayment method, guarantor and liability for breach of contract and other terms, signed and pledged.
From the name to the content of the loan agreement, it should be legal, standardized and clear, and leave no gaps in disputes.
Secondly, people should master relevant legal knowledge, learn to apply the rule of law thinking in daily life, and be aware of and reasonable expectations before implementing civil actions, so as to avoid cognitive errors and misunderstandings.
Borrowing is risky, and honesty is fundamental.
We expect both lenders and borrowers to firmly establish the concept of honesty, so that private lending will continue to play a more important role in activating the economy.
(Hu Yong)