civil judgment
(2020) Yue 0902 Minchu No.5864
Plaintiff: Maoming Branch of China Construction Bank Corporation. Address: XXX, Maoming.
Person in charge: Li Xian, president of this bank.
Authorized Agent: Liu Yanxia, lawyer of Guangdong Qian Jing Law Firm.
Defendant: Maoming Dafu Petroleum Co., Ltd., domicile: Room ××××××× 504-506, Maoming City.
Legal Representative: Liang Weiqiang, general manager of the company.
Defendant: Ke Jinyong, * *, *.
Litigation record
The case of Maoming Branch of China Construction Bank Co., Ltd. (hereinafter referred to as CCB Maoming Branch) v. Maoming Fidelity Petroleum Co., Ltd. (hereinafter referred to as Fidelity Company) and Ke was accepted by our court on September 4, 2020, and a collegial panel was formed in accordance with the law to hold a public hearing. Ke, the plaintiff's agent ad litem of Maoming Branch of China Construction Bank, and the defendant attended the lawsuit. Fidelity Company was legally summoned by our court and refused to attend the proceedings in court without justifiable reasons. The case has now been closed.
Factual basis
The plaintiff, Maoming Branch of China Construction Bank, brought a lawsuit to our hospital: 1. The plaintiff Maoming Branch of China Construction Bank was ordered to cancel the RMB liquidity loan contract signed by Fidelity Company and Ke on February 25th, 2020; 2. The defendant Fidelity Company and Ke were ordered to immediately repay the loan principal of RMB 3 million and the interest of RMB 238 1 1.43 yuan to the plaintiff Maoming Branch of China Construction Bank (the interest is temporarily calculated until August 27, 2020, from August 28, 2020 to the date of repayment of the loan principal and interest according to the agreement in the RMB working capital loan contract). 3. The defendant Fidelity Company and Branch * * * were ordered to pay the plaintiff Maoming Branch of China Construction Bank an attorney's fee of 3,500 yuan; All litigation costs in this case are borne by the two defendants.
Facts and reasons: Defendant Ke is the shareholder and legal representative of Defendant Fidelity Company. Due to the need of working capital, the defendants Fidelity Company and Ke, as borrowers, applied for a credit loan of RMB 3 million from Maoming Branch of China Construction Bank on June 2, 2020. With the approval of Maoming Branch of CCB, Defendants Fidelity Company and Ke signed RMB Working Capital Loan Contract with Maoming Branch of CCB on February 25th, 2020. According to Articles 1, 3, 4 and 7 of this Contract, Defendants Fidelity Company and Ke * * * borrowed RMB 3 million from Maoming Branch of China Construction Bank. The loan term is 12 months, that is, from February 25th, 2020 to February 24th, 20021year. If the start date of the loan term is inconsistent with the lending certificate, the actual lending date contained in the lending certificate at the time of lending shall prevail, and the loan maturity date shall be adjusted accordingly. The loan interest rate is fixed, that is, LPR(4.05%) plus 40.5 basis points, that is, the annual interest rate is 4.455%, and the interest is paid monthly. The interest settlement date is fixed on the 20th of each month, and the default interest rate of overdue loans is 50% higher than the loan interest rate, with compound interest; The contract repayment plan is to repay the principal of 65,438+0,000,000 yuan in the ninth month after the loan is issued, and 200,000 yuan in the twelfth month, with the interest paid off with the principal.
After the signing of the loan contract, the plaintiff Maoming Branch of China Construction Bank issued a loan of RMB 3 million to the defendant on February 25, 2020, and paid the loan to the payment account of the defendant Fidelity Company according to the contract and the defendant's instructions. In June 2020, the defendant Fidelity Company was in trouble and failed to pay the loan interest on time. After being urged by the plaintiff, Maoming Branch of China Construction Bank, the defendant Fidelity Company paid interest in June 2020. However, since July 2020, interest has not been paid on time, and now it is overdue until July and August 2020. Maoming Branch of China Construction Bank, the plaintiff, believes that the two defendants' failure to pay the loan interest in time as agreed in the contract has violated the provisions of Item (2) of Paragraph 5 of Article 4 and Item (1) of Paragraph 2 of Article 8 of the RMB Working Capital Loan Contract, which constitutes a breach of contract, and their failure to pay the loan interest for three consecutive months has indicated that they have failed to fulfill the repayment and interest payment obligations agreed in this contract. According to the stipulations in Paragraph 2, Paragraph 4 (4) of Article 10, Paragraph 4 (7) of Article 10 and Paragraph 1 (1) of Article 11 of the RMB Working Capital Loan Contract, Maoming Branch of China Construction Bank, the plaintiff, has the right to declare the loan to be immediately due, and ask Fidelity Company and Ke to immediately repay the principal, interest and expenses of all debts due and not due under this contract; For the interest that is not paid off on time, compound interest shall be calculated according to the loan interest and interest settlement method of this contract; Defendants Fidelity Company and Ke Jinyong shall bear the litigation costs and attorney fees arising from their breach of contract. Therefore, Maoming Branch of China Construction Bank, the plaintiff, has the right to terminate this contract, and requires Fidelity Company and Ke to immediately repay all the loan principal of 3 million yuan and interest of 238 1 1.43 yuan, and bear the legal costs of 3,500 yuan.
The defendant Fidelity Company did not reply.
Defendant Ke argued that the debt in this case was the debt when I was the legal representative of Defendant Fidelity Company. Now I can't manage it outside, and the defendant Fidelity will follow up the loan in this case.
The plaintiff, Maoming Branch of China Construction Bank, submitted evidence according to law around the litigation request. Neither Fidelity nor Kai Jinyong submitted evidence. The evidence submitted by Maoming Branch of China Construction Bank, the plaintiff, was verified by our institute and supported in the volume.
According to the statements of the parties and the evidence confirmed by examination, our court finds the facts as follows:
On February 25th, 2020, the defendants Fidelity Company, Ke (Party A) and the plaintiff Maoming Branch of China Construction Bank (Party B) signed the RMB Working Capital Loan Contract, which mainly stipulated that Party A would borrow RMB 3 million from Party B; The loan term is 2021from February 25th to February 24th, 2020; The loan interest rate is fixed, that is, LPR interest rate plus 40.5 basis points (1 basis point =0.0 1%, accurate to 0.0 1 basis point); The penalty interest rate of overdue loans under the Contract is 50% higher than the loan interest rate; For loans with floating interest rates, interest shall be calculated at the interest rate determined in the current period of each floating period; Interest shall be settled on a monthly basis, and the interest settlement date shall be fixed on the 20th of each month; Expenses (including but not limited to legal fees, property preservation fees, attorney fees and other expenses actually incurred by Party B due to Party A's violation of any agreement in this Contract) shall be borne by Party A; Party A shall bear the contract and the lawyer service fees related to the guarantee under this contract; For example, in loans overdue, if Party A fails to pay off the loan principal and interest on time, from the overdue date to the date when the principal and interest are paid off in full, interest and compound interest will be charged according to the default interest rate and the interest settlement method agreed in this contract; Tan Jiadong and Ke agree that as * * * borrowers, they shall be jointly and severally liable for repayment of debts under this contract. In addition, Tan Jiadong, Ke promised to use the loan strictly in accordance with the loan purpose agreed in this contract, and did not advocate to reduce or offset their joint and several repayment liabilities for any reason; The specific use of this loan is for the daily production and operation turnover of the defendant Fidelity Company. At the same time, other rights and obligations were agreed. On the same day, the plaintiff, Maoming Branch of China Construction Bank, issued the loan transfer certificate (loan receipt) and the Notice of Approved Loan Index, and distributed 300,000 yuan to Fidelity Company for a term of 12 months, that is, from February 25, 2020 to February 24, 2026, with a monthly interest rate of 4.455%. As of August 27th, 2020, the defendants Fidelity Company and Keshang owed the principal of RMB 3 million and the interest was RMB 238 1 1.43 yuan.
On August 3rd, 2020, the plaintiff, Maoming Branch of China Construction Bank (Party A), signed an agency contract with Guangdong Qianjing Law Firm (Party B), stipulating that Party A would hire Liu Yanxia, a lawyer of Party B, as the litigation agent in the first and second trials of this case, with an agency fee of 3,500 yuan. On September 3, 2020, Guangdong Qianzhan Law Firm issued a special invoice for value-added tax in Guangdong Province with the number 150 13 103.
The court held that
We believe that the RMB Liquidity Loan Contract, Loan Transfer Voucher (loan receipt) and Notice of Approved Loan Index between the original defendant and the defendant are the true intentions of both parties and do not violate the mandatory provisions of laws and administrative regulations. As a valid contract, the rights and obligations of both parties shall be bound by it. After the loan involved occurred, the defendants Fidelity Company and Ke Jinyong failed to pay the loan interest on time as agreed, which constituted a breach of contract. Maoming Branch of China Construction Bank, the plaintiff, has the right to require the borrower to repay all the loan principal and interest immediately. Now, due to the expiration of the contract period and the natural termination of the contract, the plaintiff's request to Maoming Branch of China Construction Bank to terminate the RMB working capital loan contract lacks basis, and our hospital does not support it. Maoming Branch of CCB, the plaintiff, requested Fidelity Company and Ke to immediately repay the loan principal of RMB 3 million and the interest of RMB 238 1 1.43 yuan (the interest is temporarily calculated until August 27, 2020, and the subsequent interest is calculated according to the contract until the actual repayment date of the loan principal and interest). Based on the contract, it is in compliance with the law and our hospital supports it.
With regard to the lawyer's fees, the RMB Working Capital Loan Contract signed by Maoming Branch of China Construction Bank and Fidelity Company and Ke clearly stipulated that Fidelity Company and Ke bear the legal fees, property preservation fees, lawyer's fees and other expenses actually incurred by Maoming Branch of China Construction Bank due to breach of contract, as evidenced by the agency contract and the special VAT invoice of Guangdong Province. Therefore, Maoming Branch of China Construction Bank, the plaintiff, demanded that Fidelity Company and Ke bear the legal fees of RMB 3,500.00 Yuan arising from this contract.
If the defendant Fidelity Company refuses to appear in court without justifiable reasons after being legally summoned by our court, it shall be deemed as giving up the litigation right and bearing the adverse consequences of not giving evidence and giving up the litigation right. Our court ruled by default according to law.
To sum up, according to Articles 44, 60, 205, 206 and 207 of People's Republic of China (PRC) Contract Law, Article 1 of the Supreme People's Court's Provisions on the Time Validity of People's Republic of China (PRC) Civil Code and Article 144 of People's Republic of China (PRC) Civil Procedure Law, the judgment is as follows.
Judgement result
1. The defendants Maoming Petroleum Co., Ltd. and Ke paid the plaintiff Zhongjian Company the loan principal of 3 million yuan and the interest of 238 1 1.43 yuan (the interest is temporarily calculated until August 27, 2020, and the interest from August 28, 2020 to the loan settlement date is calculated separately according to the contract).
2. The defendants Maoming Petroleum Co., Ltd. and Ke Yu paid the plaintiff Maoming Branch of China Construction Bank Co., Ltd. an attorney fee of 3,500 yuan within ten days after this judgment came into effect;
Three. Reject other claims of Maoming Branch of China Construction Bank Co., Ltd. ..
If the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC).
The case acceptance fee is 310/9 yuan, and the litigation preservation fee is 5,000 yuan, * * * 360 19 yuan (the plaintiff has paid in advance), which shall be borne by the defendants Maoming Petroleum Co., Ltd. and Ke. The amount that the defendants Maoming Petroleum Co., Ltd. and Ke should bear shall be paid to the plaintiff when performing the obligation of this judgment, and the court will not refund it separately.
If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and appeal to the Intermediate People's Court of Maoming City, Guangdong Province.
Document tail
Presiding judge Chen Ling
People's Juror Liu Weijian
People's Juror Yang Hushan
202 1 Mar. 2, 2008
Assistant judge Jiang Hao
Bookkeeper Zhang Xiaomin
Bookkeeper Chen Zhuang