Guangzhou Intermediate People's Court of Guangdong Province
paper of civil judgment
(2009) Sui Fa Min Zhong Er Zi No.980
Appellant (defendant in the original trial): Guangdong Gold Company, with its domicile at 8th floor, No.749 Dongfeng East Road, Yuexiu District, Guangzhou.
Legal representative: Zheng Jianhua, position: general manager.
Authorized Agent: Zhou Honghua and Ni, lawyers of Guangdong Junxin Law Firm.
Appellee (plaintiff in the original trial): Yao Heqing, female, born in June 1972, Han nationality, living at No.5, Jiuxiang, Tancun West Street, Tianhe District, Guangzhou.
Authorized Agent: Lei Jianwei and Li Xiaolin, lawyers of Guangdong Chen Nuo Law Firm.
Defendant in the original trial: Guangzhou Jinyuegui Metal Products Co., Ltd., domicile: Xinhua Industrial Zone, Xinhua Town, Huadu District, Guangzhou.
Legal Representative: Zhao Kun.
Authorized Agent: Wang Shaofeng, lawyer of Guangdong Chuangjie Law Firm.
Third person in the original trial: Guangzhou Chaojing Tea Art Co., Ltd., domicile: 1st floor, Tiyu West Street, Tiyu East Road, Tianhe District, Guangzhou.
Legal Representative: Luo Guangkai, position: manager.
The appellant Guangdong Gold Company (hereinafter referred to as Gold Company) refused to accept the case, and had a private loan dispute with the appellee Yao Heqing (former employee of Guangzhou Horse Racing Entertainment Company), the defendant Guangzhou Jinyuegui Metal Products Co., Ltd. (hereinafter referred to as Jinyuegui Company) and the third person in the original trial, Guangzhou Chaojing Tea Art Co., Ltd. (hereinafter referred to as Chaojing Tea Art Company). Our hospital formed a collegiate bench to hear the case according to law, and the trial has ended at present.
The court of first instance found through trial that on February 24, 2004, Jin Company was the borrower and Jin Company was the guarantor, and issued an IOU to Yao Heqing. The IOU content was: "Jin Company borrowed 2 million yuan from Yao Heqing, and the loan period was from February 24, 2004 to February 24, 2005. On July 24th, 2005, Gold Company and Jinyuegui Company issued IOUs to Yao Heqing, which read: "Jinyuegui Company borrowed 2 million yuan from Yao Heqing, and the loan period was from July 24th, 2005 to September 23rd, 2005. The gold company provides guarantee for the loan, and assumes joint legal liability. "On February 24th, 2006, Gold Company and Gold Company issued a loan to Yao Heqing again, which read:" Gold Company borrowed 2 million yuan from Yao Heqing, and the loan period was from February 24th, 2006 to May 23rd, 2006. The gold company provides guarantee for the loan, and assumes joint legal liability. The guarantee period is until Jin Company pays off the loan owed to Yao Heqing. In the trial of the original trial, Yao Heqing confirmed that the IOUs dated July 24, 2005 and February 24, 2006 were two extension certificates after the repayment period of IOUs expired on February 24, 2004.
In the trial of the original trial, in order to prove that the 2 million yuan involved in the case was actually lent to Jin Yuegui Company by Chaojing Tea Company, Jin Yuegui Company has returned it to Chaojing Tea Company and provided its own loan and repayment catalogue between Jin Yuegui Company and Chaojing Tea Company. The catalogue shows: April 20th, April 22nd, June 1, June 13, June 22nd, June 30th, July 13, September 15, 2006, 65438+/kloc-. On October 8, 65438/kloc-0, the gold company will 1 10,000 yuan, 2 1 10,000 yuan, 500,000 yuan, 400,000 yuan, 1 .6,000 yuan, 600,000 yuan, 1 10,000 yuan, 250,000 yuan, and 250,000 yuan. According to the Gold Company, the above-mentioned total amount of 7.985 million yuan is the repayment made by Jin Yuegui Company to Chaojing Tea Company; The catalogue also shows that on February 28th, March 9th, March17th and March 3rd15th, 2005, Chaojing Tea Company remitted 3.6 million yuan,150,000 yuan, 2.06 million yuan and1280,000 yuan to Jinyuegui Company respectively. The gold company said that the above 7.34 million yuan was a loan from Chaojing Tea Company. Yao Heqing had no objection to the authenticity of the above evidence, but pointed out that the account books could not reflect the true loan relationship between the two parties. There are many loans between Yao Heqing and Jin Company, some by bank transfer, and some by other means. If Jin Yue Company repays the loan, Jin Yue Company will definitely take back the original IOU and will not extend it. The extension shows that Jin Yue Company has confirmed the outstanding loan.
In addition, Yao Heqing supplemented the IOU and cheque dated February 28, 2005, and 18 and 500,000 yuan remitted to Chaojing Tea Company on May 26, 2006 in the above Catalogue of Loans and Repayments of Gold Companies. Yao Heqing said: "The iou proves that the above-mentioned RMB 6,543,800+500,000 was used by Gold Company to repay the RMB 2,000,000 borrowed from me on February 28th, 2005, which has nothing to do with this case. Gold Company borrowed 2 million yuan from me and paid me back 654.38+500,000 yuan on May 8 and May 26, 2006. Later, the gold company wanted to return the remaining 500 thousand yuan to me, but when I took the check to the bank, the balance in the gold company's account was insufficient, so I returned it. Because the gold company failed to repay the loan of 2 million yuan, the debt is still in my place. " Gold Company has no objection to the authenticity of the evidence, but does not confirm that Yao Heqing's 6,543.8+0.5 million yuan is another loan, not the loan in this case.
The court of first instance held that the above-mentioned "IOU" issued by Gold Company and Gold Company to Yao Heqing was the true intention of both parties and was legal and valid. 65438+On February 24, 2004, Jin Company and Jin Company issued an IOU loan of 2 million yuan to Yao Heqing. After the expiration of the IOU loan period, Jin Company and Jin Company issued IOUs to Yao Heqing on July 24, 2005 and February 24, 2006, respectively, to prove the money.
As Chaojing Tea Company explicitly denied that Yao Heqing entrusted it to collect the repayment from Jinyuegui Company, and Gold Company had no evidence to prove that Chaojing Tea Company was entrusted by Yao Heqing to collect the repayment from Jinyuegui Company, and Yao Heqing still held the original iou, and Gold Company did not have the receipt certificate issued by Yao Heqing after the loan was recovered, so Gold Company used the above-mentioned loan repayment catalogue made by him to show the current payment between Chaojing Tea Company and Jinyuegui Company. The gold company argued that it had returned the loan to Yao Heqing through Chaojing Tea Company, and there was no basis, which was rejected by the court of first instance. To sum up, the court of first instance found that the gold company failed to fulfill its repayment obligations on schedule, and during the overdue repayment period, the gold company failed to fulfill its guarantee responsibility, and both the actions of the gold company and the gold company constituted a breach of contract. Yao Heqing now demands that Jin Company immediately repay the loan and that Jin Company bear joint and several liability for guarantee, which is legally justified and supported by the court of first instance. As the loan guarantor of Jinyuegui Company, Gold Company enjoys the provisions of Article 31 of the Guarantee Law of People's Republic of China (PRC) after fulfilling the guarantee responsibility, that is, it has the right to recover from Jinyuegui Company. With regard to interest, due to Jin Yue's overdue repayment, Yao Heqing requested to calculate interest according to the bank's loan interest rate standard for the same period, which was in line with the provisions of Article 9 of the Supreme People's Court's Opinions on People's Courts Handling Loan Cases, and the court of first instance supported it. To sum up, according to the provisions of Articles 196 and 206 of People's Republic of China (PRC) Contract Law, Articles 6, 18, 21 and 31 of People's Republic of China (PRC) Guarantee Law and Article 42 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of People's Republic of China (PRC) Guarantee Law, the judgment is: to pay a loan of 2 million yuan and interest (from May 24, 2006 to the court of first instance, 2. The gold company shall be jointly and severally liable for the above debts; After assuming the guarantee responsibility, it has the right to recover from Jin Yuegui Company. If a gold company or a gold company fails to fulfill its obligation to pay money within the period specified in the judgment, it shall double the interest on the debt during the delayed performance in accordance with the provisions of Article 232 of the Civil Procedure Law of People's Republic of China (PRC). The case acceptance fee is 24,756 yuan, and the property preservation fee is 5,000 yuan (paid in advance by Yao Heqing), which shall be borne by the gold company and the gold company.
After the verdict, the gold company refused to accept the original judgment and filed an appeal, saying, 1 On February 24, 2006, Yao Heqing asked the Gold Company and the Gold Company to bear the authenticity of the loan. Regarding the authenticity of the IOUs, there are the following disputes: 1, entity body of the lending relationship. Although the IOU submitted by Yao Heqing appears to be the borrower and the borrower of the loan relationship, Yao Heqing has never provided proof of actual payment, proof of payment by Chaojing Tea Company to Gold Company and proof of repayment by Gold Company, and Yao Heqing admitted in court that he entrusted Chaojing Tea Company to make payment to Gold Company and Chaojing Tea Company as the defense of Chaojing Tea Company. Combined with another case (2008), the word No. 1306 tried by Guangzhou Intermediate People's Court (the plaintiff Yao Rongshan is a relative of Yao Heqing (the plaintiff in the original trial), involving the principal 1 1 10,000 yuan), which clearly shows a usury network: that is, both borrowers and borrowers are essentially Chaozhou fine tea. Yao Heqing is just a tool used by Chaojing Tea Company to sign an "IOU" with Jinyuegui Company to cover up the high-interest loan between Chaojing Tea Company and Jinyuegui Company, which is prohibited by law. 2. The appearance of IOUs is essentially the way that Chaojing Tea Company (ostensibly Yao Heqing) re-signed IOUs with Jinyuegui Company after Jinyuegui Company repaid the corresponding high interest rate during the previous IOUs, covering up illegal high-interest loans with false private lending relationship. (1) According to the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities of the State Council, the Notice of the People's Bank of China on Banning Underground Banks and Combating Loan-sharking, and the Reply of the General Office of the People's Bank of China on the Legal Nature of Lending Funds to Unspecified Social Objects in the Form of Loan-sharking, the subject of illegal loans can be either a unit or an individual. As long as it is "an illegal financial business activity that has been objectively formed without the approval of the competent department and does not have the legal qualification to operate financial business, it can be identified as illegal lending." Combined with this case and (2009) Guangdong-French case No.981China (hereinafter referred to as case No.981) and (2008) Guangdong-French case No.China 1306, the actions of Chaojing Tea Company and Yao Heqing have seriously disrupted the financial order. According to the above provisions and Article 2 of the Notice on Banning Private Banks (Yinfa [1996] No.230) issued by the People's Bank of China, "If private personal funds temporarily lend their own funds within the limits of their legitimate income, and ... engage in illegal financial activities in the name of private personal loans, the branches of the People's Bank of China will investigate and deal with them in conjunction with relevant departments according to law", which should be considered as illegal loans. (2) In case No.98 1 related to this case, the two mortgage contracts submitted by Gold Company, dated March 9, 2005 and May 30, 2006, clearly stipulated that the daily interest rate of the loan from Yao Heqing by Gold Company was 1%, that is, the annual interest rate was 365%, which exceeded the loan interest rate of financial institutions of the same level in the same period. Although Yao Heqing used the method of re-signing the principal IOU after collecting the money, in fact, the high-interest part was paid in the previous repayment of Jinyuegui Company, and Yao Heqing did not ask the borrower to repay the interest according to the above usury rate when suing (because the law does not protect usury interest), which is enough to prove that Yao Heqing and Chaojing Tea Art Company engaged in illegal loan issuance in the form of usury. Similarly, this case is also an activity of Yao Heqing and Chaojing Tea Company illegally issuing loans in the form of usury. (3) The fact that Gold Company and Yao Heqing signed IOUs for many times from 2004 to 2006, but there was no direct receipt for borrowing or repayment further confirmed that the IOUs involved were essentially the principal re-signed by both parties after repaying a large amount of high interest. (4) The evidence submitted by Gold Company shows that the money remitted by Gold Company to Chaojing Tea Company is obviously larger than the money paid by Chaojing Tea Company to Gold Company, which once again shows that Yao Heqing and Chaojing Tea Company illegally issue usury, which is completely in line with the usual practice of "withholding interest first and then issuing loans" by underground banks. Chaojing Tea Company engages in illegal usury in the name of Yao Heqing.
After trial, our court confirmed the facts identified by the court of first instance.
We believe that Yao Heqing submitted the IOUs issued by Gold Company and Gold Company to Yao Heqing on February 24th, 2006, in order to claim that Gold Company still owed him the loan. According to the statements of Huang Huajiang, former general manager of Gold Company, and Lin, former legal representative of Gold Company, the IOUs were issued by Gold Company on February 24th, 2004 and July 24th, 2005 respectively, but they were not returned within the agreed loan period. One of the disputes in this case is whether Yao Heqing is the lender of the loan contract in this case; The second focus of the dispute is whether Yao Heqing has actually lent the 2 million yuan specified in the loan to the gold company; The third focus of the dispute is whether the loan of 2 million yuan written on the IOU has been paid off; The fourth focus of the dispute is whether the gold company should bear the guarantee responsibility for the loan of the gold company in this case.
The first dispute is whether Yao Heqing is the lender of the loan contract in this case. According to the ascertained facts, the IOUs of 65438, February 24, 2004, July 24, 2005 and February 24, 2006 all stated that "Gold Company borrowed 2 million yuan from Yao Heqing". Gold Company and Jinyuegui Company, as borrowers and guarantors, respectively stamped the official seals on the above-mentioned IOUs for three consecutive times to confirm the contents of the IOUs and to confirm Yao Heqing's loan. Therefore, Gold Company and Gold Company claim that Yao Heqing is not the lender of the loan in this case, which is inconsistent with the above facts and will not be adopted by our court. Yao Heqing claimed that he was the lender of the loan contract in this case, which was proved by the above-mentioned iou, which was adopted by our court.
The second focus of the dispute is whether Yao Heqing really lent the 2 million yuan on the loan to the gold company. Yao Heqing submitted an iou dated February 24, 2006, claiming to lend 2 million yuan to Jin Company. Gold Company and Gold Company stamped the IOUs on February 24th, 2004 and the later IOUs on July 24th, 2005 and February 24th, 2006 to confirm that "Gold Company borrowed 2 million yuan from Yao Heqing". As the Gold Company and the Gold Company confirmed that they borrowed 2 million yuan from Yao Heqing for three consecutive times, and the Gold Company assumed the guarantee responsibility, the court's claim against the Gold Company and the Gold Company did not form a loan relationship with Yao Heqing, and Yao Heqing did not borrow money from the Gold Company, so it was not accepted. Regarding Huang Huajiang's claim that Jin Company actually borrowed RMB 6,543,800+0.8 million from Yao Heqing, instead of RMB 2 million, our hospital refused to accept it because it was only his statement and there was no corresponding evidence to support it. Yao Heqing claimed that he actually lent the gold company 2 million yuan, which was proved by the above-mentioned iou, which was adopted by our hospital.
The third focus of the dispute is whether the loan of 2 million yuan written on the IOU has been paid off. Yao Heqing, Huang Huajiang, the former general manager of Jinyuegui Company, and Lin, the former legal representative of Gold Company, all confirmed that the loan on February 24th, 2006 was a continuation of the loan on February 24th, 2004 and July 24th, 2005, and Chaojing Tea Company also confirmed that it was entrusted by Yao Heqing during the second trial. According to the contents in the Catalogue of Loan and Repayment between Jinyuegui Company and Chaojing Tea Company submitted by Gold Company, after February 24, 2006, 1.5 million yuan was transferred from Jinyuegui Company's account to Chaojing Tea Company's account on May 18 and May 26 respectively. Yao Heqing claimed that the RMB 6,543,800+5,000 yuan was the loan repaid by Gold Company on February 28th, 2005, not the loan in this case, so he thought that Gold Company had not repaid the loan in this case. In this regard, our court believes that the loan relationship between Yao Heqing and Jin Company in this case was earlier than that between Yao Heqing and Jin Company on February 28, 2005, and the loan relationship between Yao Heqing and Jin Company on February 28, 2005 was not confirmed by Jin Company and effective legal documents. Therefore, our hospital does not accept Yao Heqing's claim that the above-mentioned RMB 6,543.8+RMB 500,000 is the repayment of the loan in the IOU of Gold Company on February 28th, 2005. The Gold Company claims that the above-mentioned RMB 6,543,800+0.5 million is a reasonable amount for the Gold Company to repay the loan in Yao Heqing's case, and our hospital supports it. Since the Gold Company has repaid the loan of 6.5438+0.5 million yuan to Yao Heqing after issuing the IOU to him on February 24th, 2006, the Gold Company still owes Yao Heqing a loan of 500,000 yuan. Yao Heqing claims that Jin Yue Company still owes him a loan of 2 million yuan, which is inconsistent with the facts ascertained in this case, and our court does not support it. Gold Company and Jinyuegui Company claim that the loan has been paid off, but they have not provided sufficient basis, so our hospital will not accept it. The gold company should repay Yao Heqing's loan of 500,000 yuan. With regard to interest, since Yao Heqing and Jin Company did not stipulate interest in the IOU, Yao Heqing asked Jin Company to pay interest from the expiration date of the loan term agreed in the IOU on February 24th, 2006, that is, from May 24th, 2006, which was unfounded in the law and was not supported by our court. The value-added time shall be counted from the date when Yao Heqing claimed his rights to the court of first instance on May 5, 2008, that is, the date of prosecution. The calculation standard of interest shall be based on the loan interest rate of the People's Bank of China for the same period required by Yao Heqing. The court of first instance found that this part of the facts was wrong, and our court corrected it.
The fourth focus of controversy is whether the gold company should bear joint and several liability guarantee for the loan of the gold company in this case. Although the gold company appealed that this case and case 98 1 were suspected of illegal lending, it should be exempted from its guarantee responsibility according to law. In this regard, the court held that because the gold company only stated its claims without providing corresponding evidence to prove it, and under the court's explanation, the gold company has so far failed to provide evidence to prove that the public security organs illegally borrowed money according to this case and case 98 1, and filed a case for investigation on suspicion of crime. Therefore, our court does not support the gold company's request for exemption from its guarantee liability based on the above reasons and rejects it. The gold company should still be jointly and severally liable for the loan of Jin Yue Company in this case as agreed. The court of first instance correctly identified this part of the facts and our court upheld it. To sum up, the demand of the gold company is partly reasonable, and our hospital supports it. The court of first instance found that some facts were wrong, and our court corrected them on the basis of finding out the facts. According to Article 196 of People's Republic of China (PRC) Contract Law, Articles 18, 21 and 31 of People's Republic of China (PRC) Guarantee Law, Article 42 of the Supreme People's Court's Interpretation on Several Issues, Paragraph 1 of Article 64 and Paragraph 1 of Article 153 of People's Republic of China (PRC) Civil Procedure Law.
1. Maintain the second item of the civil judgment of Yuexiu District People's Court (2008) Yue Fa Min Yi Zi ChuNo. 1279;
2. The first item in the civil judgment of Yuexiu District People's Court of Guangzhou (2008)No. Y.F.M.I.D. 1279 is: Guangzhou Jinyuegui Metal Products Co., Ltd., the defendant in the original trial, repaid the loan of 500,000 yuan and interest to the appellee Yao He within 10 days from May 5, 2008 (calculated according to the loan interest rate standard of the People's Bank of China for the same period from May 5, 2008 to the repayment date determined by our court).
Three. Reject the appellee Yao Heqing's other claims.
If Guangdong Gold Company and Guangzhou Jinyuegui Metal Products Co., Ltd. fail to perform the obligation of paying money within the period specified in the judgment, they shall double the interest on the debt during the delayed performance in accordance with the provisions of Article 232 of the Civil Procedure Law of People's Republic of China (PRC).
The acceptance fee of the court of first instance is 24,756 yuan, which shall be borne by the appellee Yao Heqing18,300 yuan, and shall be borne by the defendant Guangzhou Jinyuegui Metal Products Co., Ltd. and the appellant Guangdong Gold Company. The total property fee is 5,000 yuan, which shall be borne by the defendant Guangzhou Jinyuegui Metal Products Co., Ltd. and the appellant Guangdong Gold Company.
The acceptance fee for the second-instance case was 24,756 yuan, of which 65,438 yuan+08,300 yuan was borne by the appellee Yao Heqing and 6456 yuan was borne by the appellant Guangdong Gold Company.
This is the final judgment.