This judicial interpretation involves many practical and technical issues, such as how to coordinate criminal responsibility and civil litigation, what is the relationship between the two figures of 24% and 36%, and how to determine the effectiveness of inter-enterprise lending, which has aroused social concern and heated discussion.
Four methods to deal with the intersection of civil and criminal punishment
Q: It is very common that private lending violates the criminal law because it is suspected of illegal fund-raising. In such cases, the parties not only report the case to the public security organ and demand that the criminal suspect be investigated for criminal responsibility, but also bring a civil lawsuit to the people's court to stipulate how to coordinate the relationship between criminal and civil affairs.
A: The judicial interpretation of private lending does involve the intersection of civil and criminal cases. In trial practice, a large number of private lending disputes are often intertwined with criminal cases such as the crime of illegally absorbing public deposits and the crime of fund-raising fraud.
In this case, how to coordinate the handling of criminal cases and civil cases is an important issue in handling private lending disputes.
2065438+In March 2004, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Fund-raising.
According to this opinion, if the people's court finds a crime of illegal fund-raising in the trial of civil cases, it shall transfer the case to the public security organ or the procuratorial organ.
This time, when we formulated the judicial interpretation, we actually reiterated this issue, that is, re-stipulated it in the civil judicial interpretation.
As long as it is a case involving illegal fund-raising crimes, it will be transferred if it is found in the trial of civil cases.
The court will no longer hear the case, which is a way of handling it.
The second way to deal with it, if the clues and materials of crimes such as illegal fund-raising are involved in the process of hearing private lending cases, what should I do in this case? For example, if someone illegally raises funds and lends money to others, the latter will form a case of private lending. What should we do about such cases? Article 6 of the new judicial interpretation stipulates that materials related to illegal fund-raising clues should be transferred to public security organs or procuratorial organs, but private lending cases will continue to be tried in the later stage.
In the third case, in the process of hearing illegal fund-raising cases, the guarantor's guarantee responsibility may be involved. In the trial of the case, it is unacceptable that the whole contract is deemed invalid because of the crime of illegal fund-raising by some parties, and the guarantor's guarantee responsibility is gone.
In this case, as long as the parties want to sue the guarantor, the people's court should accept such cases.
Fourth, in the process of hearing a private lending case, if it is necessary to find out the basic facts of the case before continuing the trial, the trial of such a case should be suspended, because the act of criminal facts may involve the basic facts of the private lending case, and the basic facts of the case may involve the determination of the subject, rights and obligations, etc. In this case, the criminal case should be closed before the civil case is resumed.
Conditional recognition of inter-enterprise lending
Q: It is one of the highlights of this judicial interpretation to make sure that the lending behavior between enterprises is legal and effective. Previously, judicial practice was generally considered invalid. Is it stipulated that the lending behavior between enterprises should be legally and effectively recognized, or is there some restrictive conditions?
A: The understanding of inter-enterprise lending has a development process, which is in line with China's economic system reform and economic development.
In the past, loans between enterprises were considered invalid.
Because at that time, based on the "General Principles of Loans" issued by the central bank 1996, the Supreme Law also made some judicial interpretations, arguing that lending between enterprises would destroy the financial order, so the loan contract between enterprises was deemed invalid under the circumstances at that time.
Moreover, this rule has not been abolished until now, but with the development of economy, especially the continuous improvement and perfection of socialist rule of law, some problems have appeared in this rule.
1. 1999 Contract Law comes into effect, which stipulates that the invalidity of a contract can only be based on national laws and administrative regulations.
Judging from the existing national laws and administrative regulations, there is no clear stipulation that loans between enterprises are invalid.
Of course, there are provisions in the General Principles of Loans, but it belongs to a departmental regulation, and its legal effect level has not yet risen to the level of administrative regulations and laws.
After the emergence of contract law, it faces legal conflicts.
The second reason is the conflict with the property law.
In 2007, China promulgated the Property Law. According to the property law, property owners have the right to dispose of their property freely according to law. Monetary funds are of course his property, and he can certainly dispose of them.
If it is based on the general principles of loans, it has no right to dispose of it. Obviously, such a provision conflicts with the provisions of the Property Law.
In recent years, on the basis of summing up the experience of judicial work, the Supreme Law clearly stipulates that loans between enterprises should be recognized as valid with conditions.
Article 1 1 of the new judicial interpretation defines the effectiveness of inter-enterprise financing. Except under the circumstances stipulated in Article 52 of the Contract Law and Article 14 of the Regulations, the parties claim that the private loan contracts concluded between legal persons, other organizations and legal persons are valid and support them.
According to this regulation, the effectiveness of inter-enterprise contracts is to limit the contracts to loan contracts needed by production and operation.
If a production and operation enterprise does not engage in production and operation and becomes a professional lender, it is impossible to lend before lending, or even withdraw cash from the bank.
Judicial interpretation stipulates that such a contract will be deemed invalid.
At the same time, the explanation also stipulates that if an enterprise borrows money from other enterprises or raises funds from employees of the unit, it should be considered invalid if it is originally for the production and operation needs of the unit, but it has not invested in the operation and management of the enterprise.
Therefore, the liberalization of enterprises this time is limited. If there are idle funds between enterprises, because the other party is for the needs of production and operation, rather than borrowing money to lend, then this contract should be valid and limited to this scope.
The purpose of doing this is not only to solve the shortage of funds for enterprises, but also to maintain the financial security of the country. Without national financial security, there is no guarantee for economic development.
It is invalid if the annual interest rate exceeds 36%.
Q: Why is the loan interest rate revised to 24% and 36%?
A: The core issue of judicial interpretation is the interest rate issue.
The agreed interest rate has several characteristics: First, the agreed interest rate is a fixed interest rate, instead of referring to the benchmark interest rate of central bank loans in the same period as before.
The second is to draw "two lines and three districts".
Firstly, the first line is drawn, that is, the fixed interest rate protected by civil law is 24% of the annual interest rate.
The second line is that the loan contract with annual interest rate exceeding 36% is invalid. Through these two lines, three areas are divided, one is invalid area, the other is judicial protection area and the other is natural debt area.
Why consider a 24% interest rate? Four times the annual interest rate has a long history. In fact, in ancient times, the monthly interest rate was two points, which means 24%.
When formulating the judicial interpretation, we studied the interest rate changes from ancient times to the present, especially the clues of the whole interest rate promulgated by the central bank since 1990. We found that the benchmark loan interest rate promulgated by the central bank changed greatly, ranging from 2.0% to 12.0% with a middle of 5%-8%. In the end, we chose 6% as a compromise and referred to the traditional four-fold meaning.
Therefore, the interest rate of 24% is a law enforcement standard that we have established in the trial practice for a long time, and it is actually a rule in folk interest rates from ancient times to the present.
Second, why should we stipulate that more than 36% is invalid? According to the judicial interpretation of 199 1 year, the four times of the benchmark interest rate of bank loans are not protected by law.
This is not protected by law, that is, you have to sue the people's court and demand the use of state coercion to protect the interest you earned, which is more than four times. But if the parties are willing to perform voluntarily, the court will recognize it. If the parties go back on their word after performance and want to come back, the court will not support it. This is what the judicial interpretation of 199 1 year means.
Summarizing the economic development in these years, we find that the profits created by the real economy are definitely not that high. If usury is not controlled, it will be unfavorable to the development of the real economy, especially small and medium-sized enterprises.
Therefore, the rule that the annual interest rate is above 36% is invalid this time. This kind of invalidity means that if the parties have voluntarily repaid the interest, they can also demand the return because the contract is invalid. This is a major revision of the judicial interpretation of 199 1 year.
More than 36% of the invalid regulations are based on the actual situation of the real society and relevant business departments, and also refer to some foreign legislative cases.
There are also some regulations in foreign countries, and interest will be refunded if it is invalid.
For this part between 24% and 36%, it is regarded as natural debt. If a lawsuit is filed to ask the court for protection, the court will not protect it, but the parties are willing to perform it automatically and the court has no objection.
Interest on natural debts is not protected.
Q: In real life, some borrowers may voluntarily pay the interest that has not been agreed, or pay more than 24% but not more than 36%, and then go back on their word. Can they ask the lender to return the paid interest to the court?
A: The current interest rate is 24%. If the parties bring a lawsuit to the people's court within 24%, as long as it does not exceed 24%, the people's court will give legal protection to this interest.
Of course, in practice, such a situation does exist. Some parties agree that the interest is above 24%, but not more than 36%, because 36% is invalid, and debts between 24% and 36% are called natural debts.
If the parties bring a lawsuit to the people's court to protect the interests within this scope according to the contract, the people's court will not protect it legally.
Therefore, it is unprotected to sue in court. However, if the borrower repays the loan according to the contract after the agreed interest rate, the repayment is valid. If he goes back on his word after repayment, it is not supported to sue the court for more than 24% interest.
But more than 36% of them are invalid, and even if they are paid voluntarily, they can be returned based on the invalidity of the contract.
Wechat chat records are also evidence.
Q: The Regulations particularly emphasize that when a lender files a lawsuit in a people's court, it should provide proof of creditor's rights or evidence that can prove the existence of a loan-loan relationship.
Does this provision contradict the registration system?
A: This provision is not only inconsistent with the registration system, but also complementary.
As early as the Western Zhou Dynasty more than 3,000 years ago, people called the loan contract "Fu Bie". The Zhou Li of the Western Zhou Dynasty recorded that officials must have credentials and evidence when trying loan disputes.
Judging from the judicial practice, in the cases of private lending disputes, the evidence submitted by the parties to prove the existence of the lending relationship is mostly debt documents such as IOUs, receipts and IOUs, which are mostly in the category of documentary evidence.
Of course, the forms of creditor's rights vouchers are not limited to "IOUs, receipts, IOUs" listed in the Regulations, but also include other evidences that can prove the existence of the loan relationship, such as electronic data such as SMS, WeChat, blogs, online chat records, audio-visual materials, etc.
In a word, the plaintiff must provide corresponding evidence, which is the basic requirement of civil litigation.
As long as the conditions for prosecution stipulated in Article 1 19 of the Civil Procedure Law are met, the people's court will accept it.
For those who do not meet the statutory conditions for prosecution, even if they have registered, they cannot enter the substantive procedures, and the people's court shall notify the parties to submit relevant evidence materials.
The above provisions are also conducive to preventing the parties from abusing their litigation rights.
Not necessarily responsible for other people's signatures.
Q: In private lending disputes, other people often sign the loan, loan or receipt, which is easy to cause disputes.
How does the Regulations regulate this issue?
A: After investigation, it is found that there are quite a few disputes in trial practice, which are caused by the signing of IOUs or IOUs issued by others, and then lead to contradictions and lawsuits.
It should be noted that traditional private lending exists more in acquaintance society. Based on relatives, friends, colleagues or other social relationships, others either act as guarantors, witnesses or intermediaries of borrowers, or sign IOUs for other reasons.
However, it is controversial whether the signature of others means to bear the guarantee responsibility.
It is precisely because in the practice of private lending, the legal significance of the third party's signature and seal in the creditor's rights certificate or loan contract has many possibilities, so the judicial interpretation makes clear provisions, including three meanings: First, only the signature or seal of others is not enough to identify the guarantor, and others do not bear the guarantee responsibility.
The so-called "unique" means that the identity of the guarantor is not indicated in the loan certificate or loan contract, and the guarantee clause is not agreed and points to the signatory or seal. At the same time, there is no other evidence to prove that the signature or seal is the guarantor.
Second, only in the case that "the guarantor cannot be inferred from other facts" can we judge that others are not guarantors.
Third, if only a third person signs or seals it, but it shows that the signer or seal is the guarantor, or it can be inferred from other terms or facts that it is the guarantor, it shall bear the guarantee responsibility for the loan.
Comprehensive judgment and verification of loan facts
Q: In private lending, borrowers generally have to issue IOUs when borrowing from others. Correspondingly, lenders should also hold IOUs as evidence to prove the existence of the lending relationship when suing.
Can it be determined that a loan relationship has occurred only by providing a debit note or a bank transfer voucher?
A: With the continuous development of the private lending market outside the formal financial system, it is easy to be accompanied by illegal fund-raising, illegal absorption of public deposits, financial fraud and other illegal and criminal acts, endangering the interests of borrowers and impacting the financial market order.
In addition, private borrowers have weak legal awareness, incomplete transaction legal procedures and strong confidentiality of lending behavior, which is also easy to cause legal disputes.
In reality, when the plaintiff files a lawsuit, it is often only based on creditor's rights vouchers such as IOUs or transfer vouchers of financial institutions as evidence to prove that a loan relationship has occurred. If the defendant pleads that the loan has been repaid, or the defendant pleads that the transfer is to repay the previous loans or other debts of both parties, in this case, there is a problem of burden of proof, and it is impossible to simply identify the loan relationship that has occurred and the content of the loan relationship that has occurred based on the IOU, receipt and IOU.
Therefore, the regulation puts forward the requirement on the distribution of burden of proof, that is, the defendant should present corresponding evidence to prove his defense claim, rather than just arguing.
If the defendant can't provide the corresponding evidence, or the evidence provided is not enough to prove his claim, it is generally necessary to assume that the loan relationship has occurred.
Of course, if the defendant provides evidence to prove his claim, the burden of proof will shift at this time, and the plaintiff should bear the burden of proof for the establishment of the loan relationship.
It should be emphasized that for private lending in which the parties advocate cash delivery, the provisions clearly require that the fact of borrowing should be comprehensively judged and verified in combination with the facts and factors such as the amount of borrowing, the delivery of money, the economic ability of the parties, the local or inter-party trading methods, trading habits, changes in the property of the parties and witness testimony.
This provision is also a summary of judicial practice in recent years, which has played a good guiding role in the identification of evidence and facts, and has a strong pertinence and operability for the majority of judges to identify the real loan relationship, which is conducive to achieving the legal effect of safeguarding the legitimate rights and interests of borrowers and curbing illegal and criminal activities.
Identifying False Private Lending Litigation
Q: The Regulations emphasize the need to strengthen prevention and sanctions against false litigation. Why are you so concerned about this problem?
A: According to the investigation, there are many false litigation in the field of civil trial, especially private lending cases.
How to effectively contain the false litigation in the dispute of private lending is a prominent problem in the trial practice, and it is also a subject to be solved urgently.
False private lending lawsuits often wear the cloak of "legality" and enter the court through normal and legal procedures. The counterfeiters carefully designed various scams to confuse the judges and obtain favorable judgments.
The interests of such cases are complex, which often cannot protect the interests of the real obligee. Once the court supports the interests of the parties in false litigation, it will not only fail to solve the dispute, but also intensify the contradictions between the parties, which will easily trigger and intensify social contradictions.
In short, false private lending litigation not only infringes on the interests of real obligees, but also wastes limited judicial resources; It not only disturbed the normal judicial order, but also affected social stability.
Although the provisions on false litigation are added in Article 1 12 of the Civil Procedure Law, it is difficult for judges to clearly identify and identify false litigation in practice. There is no corresponding provision in the general provisions of the Civil Procedure Law that "false litigation constitutes a crime and shall be investigated for criminal responsibility according to law", and there are no specific charges and corresponding punishment measures.
Imperfect legislation leads to very low illegal cost of false private lending litigation. The huge difference between the illegal interests pursued by the parties involved in malicious collusion and fictitious legal relationship in bringing a lawsuit to the court and the costs paid by the parties involved in manufacturing and participating in false litigation gives the parties improper incentives to commit illegal acts.
Therefore, we must strengthen the prevention and crackdown on false litigation and maintain an honest and trustworthy litigation environment.
How to identify false litigation is the primary problem to contain false litigation.
Previously, the court unilaterally emphasized that the mediation rate is easy to facilitate the party false litigation; The judge's preference for mediation also greatly reduces the fact finding in mediation.
In the case of false private lending litigation, there is no fierce confrontation because of malicious collusion between the two parties, and sometimes the evidence submitted to the court may be forged by both parties, which makes it more difficult for the judge to identify false litigation.
Courts at all levels have formed different ways to deal with this problem in judicial practice, but they have also reached a basic understanding that the examination of evidence should be strengthened in the trial of private lending cases.
Based on the investigation results of the trial practice of false private lending litigation, the Regulations absorb useful experiences and practices in practice, and adopt the normative mode of comprehensive judgment to summarize ten acts that may belong to false private lending litigation for the reference of judges in hearing cases.
Of course, the correct identification of false private lending litigation requires the judge to comprehensively judge whether it is a false civil litigation according to his own trial experience and knowledge of life, combined with the facts such as the cause, time, place, source of money, delivery method, flow of money, relationship between borrowers and lenders, economic situation and so on.
If it is found to belong to false litigation after trial, the people's court shall, in addition to rejecting the plaintiff's request, impose fines and detention on the litigants who maliciously manufacture and participate in false litigation in strict accordance with the regulations; If the case constitutes a crime, it must be transferred to a judicial organ with jurisdiction for criminal responsibility.
Clarify the responsibility of the peer-to-peer lending platform.
Q: With the rapid development of internet finance, many private loans have changed the traditional trading mode and been completed quickly through online transactions.
As a new thing, what are the normative measures for P2P peer-to-peer lending?
A: Since Muhammad Yunus, a Bangladeshi economist, first put forward the concept of P2P in 1979, and connected microfinance with Internet technology, P2P peer-to-peer lending gradually entered people's field of vision, and officially entered China in 2007.
Since 20 13, P2P peer-to-peer lending has developed by spurt, from the initial dozens to thousands within one year, which not only increases the number, but also expands the types and methods of lending.
It should be noted that P2P online lending will help ordinary people and small and micro enterprises to obtain the financing they need, make up for the gap in bank lending, and help enterprises and individuals that are difficult to obtain financing in traditional lending to obtain financial support.
China has formed new characteristics different from foreign P2P online lending model, and at the same time, it has also produced new problems such as complex platform role, lack of supervision subject and lack of credit system, the most important of which is that P2P participates in illegal fund-raising under the guise of investment and wealth management.
According to statistics, in 20 14 years, the number of suspected illegal fund-raising cases, the amount involved and the number of fund-raising participants in P2P peer-to-peer lending platform were 1 1 times, 16 times and 39 times of those in 20 13 years respectively, and there was still a significant increase in the first half of this year.
In the absence of relevant laws and regulations on P2P peer-to-peer lending platform, in order to better protect the legitimate rights and interests of the parties and further promote the benign development of China's online microfinance capital market, the Regulations stipulate whether and how to bear civil liability when P2P involves two legal relationships: intermediary and guarantee.
According to the regulations, if the borrower and the lender form a loan relationship through the P2P online lending platform, the provider of the P2P online lending platform only provides media services and does not assume the guarantee responsibility for the debts formed by private lending; Where the P2P online lending platform provider explicitly provides guarantee for the loan or has other evidence through web pages, advertisements and other media, the people's court shall, at the request of the lender, judge the P2P online lending platform provider to assume the guarantee responsibility.
In the future, the Supreme Court will continue to strengthen the research on the legal regulation of P2P peer-to-peer lending platform, pay close attention to the development trend of this new thing, formulate more substantial and detailed judicial interpretations or normative documents in combination with industry characteristics and legal relations, safeguard the supporting role of the Internet in entrepreneurial innovation by judicial means, promote the gathering, opening up and * * * enjoyment of various factor resources, and provide strong judicial guarantee for forming a strong atmosphere of mass entrepreneurship and innovation.
Protect the rights and interests of enterprises and lenders.
Q: In practice, a large number of legal representatives of enterprises borrow money in their own names for enterprise production and operation, or borrow money in their own names for personal consumption, which leads to disputes.
How to regulate this kind of problem?
A: As a legal person, an enterprise must carry out all its activities in social and economic life through its legal representative.
Generally speaking, according to the theory of legal representative system, the behavior of legal representative can be identified as enterprise behavior.
However, according to the same theory, in view of the legal representative's dual identity as a natural person and a representative, the enterprise must bear the legal consequences of the legal representative's behavior, which is manifested in the name of a legal person and within the scope of authorization.
Before the promulgation of the "Regulations", it was always considered that inter-enterprise lending was invalid in judicial practice. Based on the need to avoid the ineffectiveness of inter-enterprise lending and financing, it is more prominent in practice that the legal representative borrows money in his own name for the production and operation of enterprises.
In order to protect the interests of the lender, the legal representative is required to sign a loan contract in the name of an individual, but if the loan is used for production and operation, the lender may require the enterprise and the individual to jointly bear the responsibility.
However, we should also see that although the legal representatives of some enterprises borrow money in the name of enterprises, the borrowed money is used for personal life and consumption. In order to avoid damage to the legitimate rights and interests of the enterprise, if the lender, the enterprise or its shareholders can provide evidence to prove it, the people's court may, at the request of the lender, list the legal representative as a co-defendant or a third party.
Making such a provision can effectively prevent the legal representative from abusing the right of representation and achieve the purpose of balancing the legitimate rights and interests of both enterprises and lenders.
Disposal of collateral when debt is not performed.
Q: There is another phenomenon in practice, that is, borrowers often use the sales contract as a guarantee for private lending contracts.
In the event of a dispute, the lender often asks to fulfill the sales contract, and then obtains the ownership of the subject matter.
Can you introduce the handling ideas of such cases?
A: In the practice of private lending, it is a typical type of private lending dispute that the two parties sign a sales contract as a guarantee for the private lending contract.
In order to avoid the debtor's inability to repay the loan, creditors often sign sales contracts (mainly housing sales contracts) with the debtor. If it is agreed that the debtor cannot repay the principal and interest of the debt, the sales contract will be fulfilled.
Before the introduction of the new regulations, the handling methods of local courts were very different, which led to different standards of legal application and affected the legal authority.
At present, judging from the trial practice, there are two kinds of cross-confusion between buying and selling and lending: one is that buying and selling is the guarantee of private lending, and the other is that there is a real relationship between buying and selling and lending.
Because the former is the most common and has the most problems, the Regulations only regulate the former accordingly.
If the borrower can't repay the principal and interest after the loan period expires, the lender will often require the performance of the sales contract, thus directly obtaining the subject matter of the sale.
We believe that the sales contract in this case should be regarded as similar to the guarantee contract, and its effectiveness depends on the legal relationship of private lending as the main contract.
For this reason, the lender's requirement to directly perform the sales contract as a subordinate contract without the master contract actually reverses the master-slave contract relationship.
In this regard, the people's court shall try the disputes between the two parties in accordance with the legal relationship of private lending.
Only by making such provisions in procedure can the rights and obligations of both parties truly return to the correct substantive relationship.
If the lender insists on hearing the sales contract, it shall rule to dismiss the lawsuit.
Source link of Shanghai lawyer network
After the judgment made in accordance with the legal relationship of private lending comes into effect, if the borrower fails to pay off the debt with the principal and interest repayment amount determined in the effective judgment, the lender may apply for auction of the subject matter of the sales contract to pay off the debt.
It is an inevitable arrangement to dispose of collateral according to law when the debtor fails to perform his debts, and its purpose is to protect the legitimate rights and interests of creditors from infringement.
However, any system design should adhere to the principle of fairness and justice. While protecting creditors' interests, we should not neglect the legal protection of debtors' legitimate rights and interests, and the auction procedure is conducive to preventing overvaluation or undervaluation from harming the interests of the other party.
Therefore, the regulations require that the subject matter should be handled by auction rather than valuation to reflect the principle of fairness.
In addition, the regulations also emphasize that the borrower or lender has the right to demand return or compensation for the difference between the price of the auction target and the principal and interest of the loan that should be repaid.
This provision can balance the interests of the parties and embody the principle of justice, thus truly completing the evolution from procedural justice to substantive justice.