Publisher: Lawyer Hu Jun | Date: May 24, 2022 | Category: Comprehensive Consultation | 1 129 people have seen it.
Analysis of lawyer's viewpoint
Defendant: Li XX, male, born on June196465438+1October/1day, Han nationality, and his household registration address is XX, Jiangdu City, Jiangsu Province.
The dispute over the right of recourse between plaintiff Hubei XX Company and defendant Li XX was filed in our hospital on June 65438+1October 65438+June, 2022, and it was tried in public by summary procedure according to law. Hu XX and Li XX, the plaintiff's entrusted agents ad litem, appeared in court to participate in the litigation, while Li XX, the defendant, was legally summoned by our court and did not appear in court to participate in the litigation without justifiable reasons. The case has now been closed.
The plaintiff brought a lawsuit to our court: 1. According to the law, the defendant was ordered to pay the advance payment of 265,438+02,887.74 yuan and the interest on capital occupation [interest calculation method: based on 65,438+065,438+07096.4 yuan, from February 30, 2065,438+08 to August 30, 2065,438+09] 438+0.34 yuan as the base, calculated according to the loan market quotation published by LPR from July 5438+0, 2026 to the actual repayment date (annual interest rate of 3.85%)]; 2. The certification date is 202165438+February 27th, and the interest is 167 14.5 yuan, totaling 229,602.24 yuan; Three. The legal fees in this case and the resulting attorney fees shall be borne by the defendant.
Facts and reasons: On October 20 10, 1654381October 10, the defendant Li XX signed a commercial housing sales contract with the plaintiff to buy a set of commercial housing sold by the plaintiff, which is located in Unit ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× The agreed payment method is: Defendant Li XX made a down payment of RMB 89,420,438+00 on October 28th, 2065.
Yuan, the remaining purchase price of 206,000 yuan is used for XX mortgage. 201117. Defendant and China XX (hereinafter referred to as CCB).
Huanggang Branch ") signed the Loan Contract for Individual Housing (Commercial Housing) and borrowed RMB 206,000 from XXX with a loan term of 65,438+05 years. The plaintiff provided a phased guarantee for the defendant's loan. The defendant failed to repay XXX on schedule as agreed in the loan contract from February 20 12, and the plaintiff repaid XX on behalf of the defendant from February 20 12 until February 30, 20 18. On April 5, 20 19, XXX sued both the defendant and the plaintiff to the Huangzhou District People's Court in Huanggang City, Hubei Province, demanding the defendant to repay the loan, and the plaintiff was jointly and severally liable for the guarantee. Huangzhou District People's Court of Huanggang City made a civil judgment of (20 19) e10/02186 in the early Republic of China. It is judged that the defendant Li XX repays XXX's loan principal 10683 1.26 yuan (the late interest and penalty interest are the principal 10683 1.26 yuan, and the interest is calculated from September 20 19 to the date of payment). The defendant and the plaintiff * * * each paid a lawyer's fee of RMB 5,900. (20 19) After the civil judgment E 1 102 Minchu 2 186 came into effect, the defendant failed to perform the judgment obligation, and XXX applied to the Huangzhou District People's Court of Huanggang City for compulsory execution, and the court directly deducted the execution money from the plaintiff's XX account.
9579 1.34 yuan. On August 24th, 20021year, Huangzhou District People's Court of Huanggang City issued Notice of Closing the Case (202 1) E102: According to (2019) E165438. At this point, the plaintiff paid XX loan, interest and other expenses on behalf of the defendant, totaling 212,887.74 yuan, and paid legal fees15,900.00 yuan to safeguard the legitimate rights and interests.
The plaintiff repeatedly asked the defendant to repay the above money, but the defendant always ignored it. The defendant's behavior not only violated good faith and constituted a breach of contract, but also caused serious economic losses to the plaintiff. In order to safeguard their legitimate rights and interests, the plaintiff sued the court and asked the people's court to support all the plaintiff's claims according to law!
Defendant Li XX did not reply.
In order to support his claim, the plaintiff submitted the following evidence to the court during the trial:
1. Copy of plaintiff's business license. Information to prove the identity of the plaintiff.
2. A copy of the defendant's ID card. Information to prove the identity of the defendant.
3. Commercial housing sales contract. It is proposed to prove that the defendant Li XX signed a house purchase contract with the plaintiff on June 0, 20 10/65438 to purchase a house sold by the plaintiff at Room XX, Unit XX, Building XX, XX Road, Huangzhou District, Huanggang City, with a total house price of RMB 295420.
4 individual housing (commercial housing) loan contract. It is now proposed to prove that the defendant submitted to CCB.
Huanggang Branch borrowed 206,000 yuan, and the plaintiff provided a phased guarantee for the loan.
5.(20 19) E 1 102 Civil Judgment of the Republic of China No.2186, (202 1)
E 1 102 1347 Closing Notice, Personal Repayment Voucher, Li XX Personal Loan Repayment Schedule, and Collection Execution Notes. To be proved: 1. From 20 12 to 20 18 12, the plaintiff compensated the plaintiff for the loan of 1 1709.4 yuan on behalf of the defendant; 2. Because the defendant failed to fulfill the payment obligation according to the effective judgment, the people's court deducted 9579 1.34 yuan from the plaintiff's XX account according to the effective judgment.
Defendant Li XX did not appear in court for cross-examination and did not submit evidence to the court.
After examination, we believe that the evidence 1, 2, 3, 4 and 5 submitted by the plaintiff related to this case is true and valid, and we will adopt it.
According to the statements of the parties and the evidence confirmed by examination, our court finds the facts as follows:
On 20 1 1 year 1 month 65438+7, the defendant signed the individual housing (commercial housing) loan contract with XXX, and borrowed 206,000 yuan from XXX for a loan period of 15 years. The plaintiff provided a phased guarantee for the defendant's loan. After XXX borrowed money, the defendant failed to repay the loan as agreed, and the plaintiff repaid the loan to XXX in 27 installments from February 20 12 to February 20 18/27/27/2006.40 yuan. On July 7, 20 19, XXX filed a lawsuit in our hospital, demanding that the above loan contract expire ahead of schedule and pay all the principal and interest. Our hospital made a decision on 20 19 (20 19) on September 2, 2602. 2. Defendant Li XX repaid the loan principal 10683 1.26 yuan to Plaintiff China XX within seven days from the effective date of this judgment (the later interest and penalty interest are based on 10683 1.26 yuan, and the interest is from September 20 12, 2009 as agreed in the contract. Three. The defendant Hubei XX Company is jointly and severally liable for the above debts. Four. Defendant Li XX and Hubei XX Company paid the plaintiff China XX a lawyer's fee of 5,900 yuan. V. Reject other claims of plaintiff China XX. After the case came into effect, XXX applied to our hospital for execution, and our hospital frozen and deducted the deposit in the plaintiff's name of RMB 957,965,438+0.34, and issued a receipt to the plaintiff.
The court is now informed that the defendant, as the guarantor, should repay the compensation of 21288,774 yuan and pay the interest on capital occupation.
In our opinion, Article 700 of the General Principles of Civil Law of People's Republic of China (PRC) stipulates that after the guarantor assumes the guarantee responsibility, unless otherwise agreed by the parties, he has the right to recover from the debtor within the scope of his undertaking the guarantee responsibility, and enjoys the creditor's rights, but shall not harm the interests of creditors. Therefore, the plaintiff asked the defendant to repay the compensation of 212,887.74 yuan, which was supported by our court according to law. The plaintiff claimed that the defendant paid interest on the funds occupied. Since the two parties have not agreed to recover the interest loss, our court will calculate the interest loss according to the one-year market quotation at the time of prosecution, that is, 3.8%, from the date of prosecution by the plaintiff.
To sum up, according to the provisions of Article 700 of the General Principles of the Civil Law of People's Republic of China (PRC) and Article 147 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
1. Defendant Li XX shall pay compensation of RMB 2 12887.74 to plaintiff Hubei XX Company within 10 days from the date when this judgment comes into effect, and pay interest (interest calculation method: based on RMB 2 12887.74, the annual interest rate is 3.8%, from June 2022 to 65438+)
Second, reject the plaintiff's other claims of Hubei XX Company.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 260th of the Civil Procedure Law of People's Republic of China (PRC).
The case acceptance fee of 4,744 yuan was halved to 2,372 yuan, which was borne by the defendant Li XX.
If you refuse to accept this judgment, you can file an appeal with the filing court of 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 Huanggang City, Hubei Province.