Private lending refers to lending between citizens, between citizens and legal persons, and between citizens and other organizations. As long as the intentions of both parties are true, it can be considered as valid, and the mortgage generated by the loan is also valid accordingly, but the interest rate shall not exceed the relevant interest rate stipulated by the People's Bank of China. Private lending is divided into private individual lending activities and lending between citizens and financial enterprises. Private individual lending activities must strictly abide by the relevant provisions of national laws and administrative regulations, and follow the principles of voluntary mutual assistance, honesty and credit. In a narrow sense, private lending refers to the civil legal act of citizens borrowing money or other valuable securities according to the agreement. In addition to the above, folk lending in a broad sense also includes money or securities lending between citizens and legal persons and between citizens and other organizations. In real life, it usually refers to private lending in a narrow sense.
In order to avoid unnecessary economic disputes between borrowers and lenders and protect the economic interests of creditors, we need to pay attention to the following aspects:
1. Lending should be legal.
Only legal loan relationship can be protected by law. If the borrower knows that the loan is used for fraud, drug trafficking, drug abuse and other illegal activities, the national laws will not protect it, and the lender will not only get the creditor's rights, but also be punished by civil, administrative and even criminal laws. If one party takes advantage of others' danger, or uses fraud, coercion and other means to make the other party borrow money against his will, it is an invalid civil legal act, and the responsible lender can only recover the principal.
Step 2 conclude an agreement
In real life, some lenders often refuse to issue written documents because the other party is a relative or friend, out of respect or out of trust. In this way, once the borrower denies it, it is difficult for the lender to protect the creditor's rights. Even if you go to court, you will end up losing because you can't prove it. Therefore, the lender must conclude a written loan agreement with the borrower, indicating the name, loan type, currency, amount, time, term, purpose, interest rate, repayment method, guarantor and liability for breach of contract, and sign it, with each party holding one copy and keeping it properly.
The interest rate should be legal.
According to 15, the provisions of the Supreme People's Court on several issues concerning the application of law in the trial of private lending cases came into effect in September:
Article 26 If the interest rate agreed between the borrower and the lender does not exceed the annual interest rate of 24%, and the lender requests the borrower to pay interest at the agreed interest rate, the people's court shall support it.
The interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36%, and the interest agreement in excess is invalid. The people's court shall support the borrower's request to the lender to return the part of the interest paid that exceeds 36% per annum.
Step 4 provide a guarantee
For large or risky loans, guarantee and mortgage procedures should be performed, and the borrower should be required to provide a third party with certain economic strength as its guarantee, or the borrower should use personal property such as certificates of deposit, bonds, motor vehicles and real estate as collateral, and conclude a written loan agreement. If some properties are mortgaged, they should also go through the mortgage registration formalities with the relevant departments. In this way, once the borrower is unable to repay the debt, he can claim the loan from the guarantor or legally offset the loan with collateral.
Step 5 collect in time
According to Article 135 of the General Principles of Civil Law, the limitation period for the lender to apply to the people's court for creditor's rights protection is two years. If two years have passed since the maturity of the loan, and the lender cannot prove that it has been collected during the period, the law will not protect it. In order to prevent the statute of limitations from exceeding, the lender shall require the borrower to write a repayment plan before the expiration of the statute of limitations, which can be recalculated from the new repayment period.
6. Pay attention to the restrictions of action
Because most private lending occurs between friends and relatives, many people do not pay due attention to it. Unexpectedly, some scoundrels just took advantage of this loophole and took the way of default, long delay and evasion to avoid debt. I would like to remind you that two years from the date of the expiration of the repayment period is the statute of limitations stipulated by law. During this period, you must claim your creditor's rights from the borrower. After 2 years, the court will not protect your creditor's rights. If no repayment date is specified, the longest limitation of action is 20 years.