Operator: Zhang long station.
Appellant (defendant): huizhou city huizhou huiyang new surplus joint industry and trade limited company, domicile: huizhou city huiyang district danshui donghua avenue no. 1.
Legal representative: Zhang Changzhan, general manager.
The above two appellants *** with the appointed litigation agent: zeng wenjing, guangdong bingyuan law firm lawyer.
The above two appellants *** with the appointed litigation agent: Fan Liyun, guangdong standard far law firm lawyers.
Appellee (plaintiff): Ye Jianhui, *, *, *, *.
Appointed litigation agent: Lin Weike, Guangdong Yue Jian Law Firm lawyer.
The trial defendant: Zhang Changzang, *, *, *, *.
Appellant Huiyang District Century Huayuan Grand Hotel, Huizhou City Huiyang Xinying Lianying Industrial Trading Company Limited and the appellee Ye Jianhui, the original defendant Zhang Changzang due to civil loan disputes, dissatisfied with the Guangdong Province, Huizhou City, Huiyang District People's Court (2016) Yue1303 Minchu No. 3898 Civil Judgment, appealed to this court. This court accepted the case according to law, formed a collegial panel hearing, has now concluded.
Opinion of the parties to the original trial
November 14, 2016, the plaintiff in the original trial, yeh jianhui, filed a lawsuit to the trial court, requesting: 1, order the defendant a plaintiff to repay the principal of the loan of 1 million yuan and the monthly interest on the loan (counted to the date of the lawsuit) 330,000 yuan; 2, order the defendant a defendant to bear the plaintiff to the three defendants to recover the loan of this case to hire a lawyer to produce 65,000 yuan attorney's fee 3, request to order the defendant two, defendant three of the claims 1, 2 bear joint and several liability; 4, order the defendant a litigation costs. The plaintiff changed in court for the monthly interest rate of 2 points
The main facts and reasons are: on December 12, 2014, the defendant a business turnover needs, to the plaintiff borrowed 1 million yuan, and signed a loan agreement, the loan agreement agreed to borrowing period of 6 months, the borrowing interest of 3 points per month, and agreed that the agreement to perform and disputes arising from attorney's fees borne by the defendant a defendant, defendant two, Defendant three for the defendant a loan guarantee. But the defendant has not been to the plaintiff to pay the interest, the plaintiff repeatedly unsuccessful, the defendant's behavior violates the contract law article 206 and the loan agreement, the defendant two, three also failed to fulfill its guarantee responsibility. Based on the above facts, the plaintiff in order to safeguard their legitimate rights and interests, according to "civil procedure law" article 108 to the people's court civil litigation, I urge the people's court to support the plaintiff's litigation request.
The defendant Zhang Chang station did not appear in court and did not submit any written defense and copies of evidence to the court.
Facts ascertained by the trial court
The trial court found that: on December 12, 2014, the defendant Zhang Chang station to the plaintiff Ye Jianhui borrowed 1 million yuan, the plaintiff Ye Jianhui the same day through the bank transfer to the defendant Zhang Chang station paid the borrowed money 1 million yuan, the defendant Zhang Chang station to the plaintiff Ye Jianhui issued the loan note, which reads: "I Zhang Chang station, due to business turnover difficulties, now I have to pay a loan of 1,000,000 yuan. Station, due to business turnover difficulties, now to leaf Jianhui borrowing RMB one million yuan whole (1000,000) yuan borrowing time for six months, the two sides agreed to borrower commitment as follows: 1, the borrower is willing to deliver (monthly interest of 3 cents) 3% monthly interest to the lender; 2, due to the conclusion of the performance of the agreement and dispute resolution costs (including the cost of the charge lawyers fees, such as the cost of implementation of the borrower to bear. 3, such as The contradiction that occurs in the recovery of money all responsibility is borne by the borrower Guarantor (stamped Huiyang District Century Huayuan Hotel and Novelty Associated Trading Co., Ltd.'s official seal) Borrower Zhang Chang Station No. 2014.12.12". Defendant Zhang long station since January 2016 did not repay interest to the plaintiff Ye Jianhui, the plaintiff Ye Jianhui many times to the defendant Zhang long station, but the defendant Zhang long station has not repaid the loan, so the plaintiff told to this court.
And check, the plaintiff so the lawsuit cost 65000 yuan.
Rationale and results of the trial court
The trial court held that the case is a private loan dispute. Private lending refers to natural persons, legal persons, other organizations and their mutual financial financing. Legal lending relationship is protected by law, the defendant Zhang Chang station for business turnover difficulties to the plaintiff Ye Jianhui borrowed and received the money to the plaintiff issued a loan note, the two sides of the lending relationship was established. The plaintiff requested the defendant Zhang long station to repay the principal amount of the loan RMB 1000000 yuan and 1000000 yuan as the principal from January 2016 to November 2016 at a monthly interest rate of 2% interest during the occupation of funds, in line with the provisions of the law, the court shall support.
The plaintiff and the defendant agreed in the loan note that the defendant Zhang Changzang should bear the plaintiff to realize the cost of the claim, including the plaintiff to realize the claim to pay the attorney's fees. The above agreement is legal and valid. Plaintiff Ye Jianhui for the lawsuit has actually paid 65000 yuan. The plaintiff requested to order the defendant to bear the costs, legal and reasonable, the court shall support.
Defendant huiyang district century huayuan hotel, huizhou city huiyang new ying lian ying industrial trading co., ltd for the defendant zhang long station to provide guarantee guarantee, but did not agree to guarantee, according to the "people's republic of china **** and the state guarantee law" article 19 of the provisions of the parties to the guarantee did not agree or agreed is unclear, according to the joint and several guarantee guarantee guarantee, should be determined that the defendant Huiyang district century huayuan hotel, new surplus joint venture trading limited company for the defendant zhang long station to provide joint and several liability guarantee. Therefore, the plaintiff asked the defendant huiyang district century huayuan hotel, huizhou city huiyang new Ying Lianying industrial trading limited company to assume joint and several liability, the court shall support.
The defendant Zhangchang station by the court subpoena lawful summons, without good reason refused to appear in court, as its waiver of the right to defend, according to absenteeism. In summary, the trial court in accordance with the Chinese people's *** and the state guarantee law, article 18, article 19, the supreme people's court on the trial of civil loan disputes, article 29 of the provisions of the law applicable to a number of issues, the Chinese people's *** and the national procedural law, article 64, article 142, article 144, on january 5, 2017, made (2016) guangdong 1303 Minchu 3898 judgment: first, the defendant Zhang Changzang in this judgment within ten days from the date of the legal effect of the repayment of the plaintiff Ye Jianhui borrowing principal of RMB 1,000,000 yuan and pay the corresponding interest during the period of funds occupation (interest: to 1,000,000 yuan as the principal amount, according to the monthly interest rate of 2% calculated from January 2016 until November 2016); second, the defendant Zhang Changzang in this judgment Within ten days from the date of legal effect to repay the plaintiff Ye Jianhui lawyer's fee of 65000 yuan; Third, the defendant Huiyang district century huayuan grand hotel, huizhou city huiyang new ying lian ying industrial trading limited company for the defendant zhang long station of the above all the debt is jointly and severally liable; Such as failing to fulfill the obligation to pay money according to the period specified in this judgment, should be in accordance with the "people's republic of china * * * and the national civil procedure law" article 253 If it fails to fulfill the obligation to pay money within the period specified in this judgment, it shall, in accordance with the provisions of Article 253 of the Chinese People's *** and National Affairs Litigation Law, double the interest on the debt for the period of delayed performance. The case acceptance fee 17356 yuan, halved to 8678 yuan by the defendant zhang long station, the defendant huiyang district century huayuan hotel and huizhou city huiyang new ying lian ying industrial trading limited company to bear (the plaintiff zhang long station has pre-paid the litigation fee 8678 yuan).
Parties in the second trial
The defendant Huiyang district century huayuan hotel, huizhou city huizhou city, the new ying lian ying industrial trade limited company does not accept the judgment of the first instance, appealed to the court, requesting: first, please revoke the judgment of the original judgment, and according to the law, and to change the sentence. Second, the case of the first and second instance costs borne by the appellee.
The main facts and reasons are: the appellee claimed that the appellant guarantee responsibility has exceeded the guarantee period, the appellant's guarantee responsibility should be exempted according to law. In this case, from the appellee issued the "loan debit" can be seen, although the appellant as a guarantor of the loan, but the "loan debit" did not agree on the guarantor of the guarantee period. According to Article 26 of the Guarantee Law of the People's Republic of China*** and the State of China: "If the guarantor of a joint and several liability guarantee and the creditor have not agreed on a guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of the expiration of the period for the fulfillment of the principal obligation. In the contractually agreed guarantee period and the guarantee period stipulated in the preceding paragraph, the creditor did not require the guarantor to assume the guarantee responsibility, the guarantor is exempted from the guarantee responsibility." The appellee should ask the appeal to bear the guarantee responsibility within six months from the date of expiration of the borrowing period. From both sides of the borrowing period, the appellee asked the appellant to bear the guarantee responsibility obviously exceeds the guarantee period. Therefore, the appellant's guarantee responsibility should be exempted according to law. In summary, the appellant that: the appellant's guarantee responsibility should be exempted, request the court of second instance to revoke the original judgment and change the judgment.
The appellee Ye Jianhui in the second trial replied: we believe that after the loan expires Zhang Chang station as the appellant's actual operator, we constantly to Zhang Chang station to claim the repayment, that is, to the appellant to claim the obligation to pay back, there is no six months did not claim the problem. The first instance judgment to find the facts clearly applicable law is correct, the appellant's appeal has no factual and legal basis, request the court of second instance to reject the appellant's appeal, maintain the original judgment.
In the second trial, the appellant and the appellee did not submit new evidence.
The facts as found by this court,
This court has found that the facts as found in the original trial are basically true, and this court affirms them.
Also, in accordance with the application of the plaintiff in the original trial, Ye Jianhui, this court on April 25, 2017 made (2017) yue 13 min final 1042-1 civil ruling, freezing the deposit in the name of the century huayuan grand hotel in huiyang district bank account (account bank: industrial and commercial bank of china huiyang branch, account number: 20×××41), the amount of freezing to the extent of 1.4 million yuan.
Reasons and results of the court's decision
The court held that: this case is a private lending disputes, combined with the appellant's appeal request and reasons, the case of the second trial of the two sides focus on: the appellee to the two appellants claimed that demand for the guarantee responsibility has exceeded the guarantee period, the guarantee responsibility should be exempted from the problem. Specific comments are as follows:
The two appellants claim to have exceeded the guarantee period can be exempted. The appellee Ye Jianhui claims that after the loan expires, it repeatedly to the appellant and its legal representative Ye long station debt repayment, request to bear the guarantee responsibility, it to Zhang long station to claim repayment is also to the appellant to claim the obligation to pay back, there is no more than the guarantee period. In this regard, the court held that the Chinese people's * * * and the state guarantee law, article 19 provides: "the parties to the guarantee mode did not agree or agreement is unclear, in accordance with the joint and several liability guarantee guarantee responsibility." Article 26 provides: "If the guarantor of a joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period for the fulfillment of the principal obligation. If the creditor does not request the guarantor to assume the guarantee liability during the guarantee period agreed upon in the contract and the guarantee period stipulated in the preceding paragraph, the guarantor is exempted from the guarantee liability." The supreme people's court "on the application of
In summary, the trial found the facts clear, the treatment is not improper, this court shall be maintained. The appellant's appeal claim has no legal basis, the court will not support its appeal request. In accordance with the provisions of article 170(1)(a) of the Chinese people's *** and national civil procedure law, the judgment is as follows:
Rejecting the appeal and affirming the original judgment.
The cost of 17,356 yuan for the second trial shall be borne by the appellant.
This judgment is final.
Judge Zeng Ying