China News Service, April 26. According to the website of the Supreme People's Procuratorate, in the first quarter of 2022, procuratorial organs across the country handled 4,628 civil procuratorial supervision cases related to loan contracts, accounting for 25% of the total number of cases of supervision of civil effective judgment results.
The handling of the case found that the loan contract disputes mainly involved financial loan contract disputes, private lending disputes, and inter-bank lending contract disputes among financial institutions, etc., and were concentrated in economic fields such as production and operation, financial investment, real estate development, commodity consumption, and international trade.
Such supervision cases reveal that the private lending market is not standardized enough, and the parties have insufficient legal awareness and risk awareness.
First, the lender lacks legal awareness, and it is difficult to prevent risks in all aspects.
Loans, especially private loans, often occur between acquaintances, and the parties are often limited by human feelings, neglect to retain evidence, and ignore legal risks.
When some borrowings occurred, sufficient evidence was not left, resulting in the inability to confirm the borrower, amount, interest, whether it has been repaid, whether there is a guarantee, the method and measures of the guarantee and other facts during the litigation.
In some cases, when the loan amount, loan purpose, loan period and other matters are changed, there is a lack of written evidence to clarify it, and it is difficult to determine the liability for breach of contract after a dispute occurs.
Some do not pay attention to keeping the evidence of repayment and recovering the arrears when repaying, which makes it difficult to determine the repayment amount and its interest and the statute of limitations.
Especially when entrusting a third party to repay and collect money, there is a lack of written confirmation evidence for the fact of repayment.
In some difficult and complex cases, there are often important situations such as lack of loan-related vouchers, transformational loans, joint debts between husband and wife, circumvention of interest rate ceilings, split loans, and changes to loan purposes. At this time, evidence that meets legal regulations or litigation requirements becomes apparent. extremely critical.
Once the evidence is missing, it will directly affect the determination of the overall facts of the borrowing behavior, thereby affecting the support and protection of the legitimate rights and interests of the parties.
For example, in a civil supervision case of a private loan dispute handled by the procuratorate, Liu and Jiang were friends.
Liu lent 5 million yuan to Jiang, but because of his affection, he did not specify the interest in the loan contract, and only verbally agreed on a one-year period with an interest of 10%.
A year later, Jiang failed to repay the loan, and Liu sued the court. Since he could not provide evidence to prove that the loan agreed to have interest, the court only ordered Jiang to repay the principal, and did not support Liu's claim for interest.
The second is that the guarantor has insufficient awareness of the guarantee risks, and easily becomes the "bearer" of other people's debts.
The case handling found that many parties did not pay attention to the guarantee in the loan contract, resulting in damage to their own interests.
Some guarantors do not fully understand the meaning of the guarantee, and the corresponding legal responsibilities for the guarantee are not fully understood, and there are situations such as blind guarantee, forced guarantee, false guarantee, and fraudulent guarantee.
Some companies illegally provide external guarantees without legal procedures, or without the consent of the shareholders (general) meeting or the board of directors.
There are also guarantors who easily assume joint and several liability, and fail to notify the debtor in a timely manner after taking responsibility, so that the creditor can take advantage of it, receive double repayment, and seek illegitimate interests.
For example, in a civil supervision case of a private lending dispute handled by the procuratorate, Zhao Moumou borrowed 400,000 yuan from Zhou Moumou for a period of four days, and Hu Moumou served as the guarantor.
After the loan expired, Zhao Moumou did not repay the loan.
Zhou Moumou asked the guarantor Hu Moumou to bear the guarantee responsibility because his search for Zhao Moumou was unsuccessful.
Hu Moumou and Zhou Moumou reached a mediation agreement, stipulating that Hu Moumou should bear the guarantee responsibility of 300,000 yuan within the scope of guarantee, and the balance of 100,000 yuan and interest would not be borne.
Later, Hu Moumou repaid the loan to Zhou Moumou in three installments totaling 300,000 yuan.
Since then, Zhou Moumou concealed the fact that the guarantor Hu Moumou had repaid 300,000 yuan, filed a lawsuit against Zhao Moumou and his wife, and still asked them to repay 400,000 yuan in arrears and interest.
The third is to ignore the statute of limitations or the guarantee period and fail to safeguard legitimate rights and interests.
After a dispute over a loan contract occurs, if the parties wish to claim their rights through litigation, they must first understand legal systems such as the statute of limitations.
Existing laws and regulations stipulate relatively clear statutes of limitations and other systems, but the procuratorial organs found in handling cases that many civil subjects, including banks and other financial institutions, did not realize the importance of the statute of limitations or the guarantee period, so they failed to exercise their litigation rights in a timely manner. Legitimate rights are not protected by law.
For example, in a civil supervision case over a financial loan contract dispute handled by the procuratorate, Guo Mouen borrowed from a rural credit cooperative in a county, and Guo Mouran guaranteed the loan for a period of one year.
Guo Mouen failed to repay the loan after the expiration, and a county rural credit cooperative sued the court, requiring Guo Mouran to assume the responsibility of guarantee.
The court upheld the claim of the RCC.
Guo Mouran refused to accept it and applied for procuratorial supervision.
The procuratorial organ found that the rural credit cooperative in a county did not claim guarantee responsibility to Guo Mouran within the guarantee period. According to the relevant laws and judicial interpretations, the above claims are not protected by law.
The procuratorial organ issued a retrial procuratorial suggestion to the court, and the court adopted and initiated the trial supervision procedure.
In view of the above risk points, the procuratorial organs suggest: First, we must enhance the awareness of rights protection in accordance with the law.
Master the relevant legal knowledge, and pay attention to collecting and retaining evidence before and after borrowing to prevent the risk of losing the case due to insufficient evidence.
Second, we must establish correct risk awareness.
In determining loan-related matters, issuing loan-related vouchers, setting guarantee responsibilities, etc., we must be "prudent and cautious".
The third is to enhance the awareness of rational investment.
Establish a scientific and rational concept of debt, consumption, and investment and financial management, do not trust investment products promoted through informal channels, prevent excessive borrowing, induced loans, "pre-consumption", and do not participate in illegal lending behaviors such as "routine loans" and "usury loans" .