Attention should be paid to the problem of loan contract dispute case

A,      Subject

1,       The relativity of the contract: Loan dispute is a contract dispute, according to the relative nature of the contract, shall be as a defendant to each other in a contract, if the defendant, then confirm the Is it right? Contract party;

2,       The loan qualification: financial institutions in the business of lending, private lending (except the enterprise and between enterprises, between a natural person, natural person and enterprise are borrowing, generally deemed valid, but according to "the Supreme People's Court on how to determine the citizens and enterprises between loan for potency question reply", there are several situation: * enterprise borrowing name to workers illegal fund-raising * enterprise to borrow the name of illegal financing from social enterprises to borrow the name * * other public loans in violation of laws, administrative regulations, shall be deemed to be invalid)

3,       Treatment of lending between enterprisesReply: the Supreme People's Court on enterprise loan contract the borrower fails to repay the loan should be how to deal with the issue of enterprise loan contract, in violation of the relevant financial regulations, the contract is null and void. For after expiration of the contract, the borrower fails to repay the principal, the prosecution to the people's court, the people's court shall in accordance with the Supreme People's Court (the) [1990] 27 "on Several Issues concerning the trial of joint contract dispute case to answer" fourth second the relevant provisions of the decision, since both parties agreed on reimbursement expires date, toThe judgment of the court to determine the borrower to repay the principal expiration period of interest, shall be confiscated, the interest on debit and credit the original agreed interest rate calculation, if the parties have not agreed to loan interest, according to the bank loan interest rate. The borrower fails to repay the principal judgment period, should be in accordance with the provisions of the "PRC Civil Procedure Law" article 232nd of the double payment of interest during the delay in performance.

4,      Discussion: if there is actual borrowing, is listed to participate in the proceedings for the common person, or how to deal with?

5,       Adding partyAccording to the opinions of the provincial high court: treatment of bank loan cases, the following cases additional raw has an independent legal personality of the borrower or guarantor of the superior administrative unit, start-up units or investors as a co defendant: * obligor or guarantor business period, no liquidation obligor or guarantor * is revoked, the administrative department for Industry and Commerce shall revoke, after the dissolution, liquidation of the debtor or guarantee not * although business deadline has not been full, but have to stop business for more than a year, did not go through the formalities for deregistration, also did not break up (but for the debtor, guarantor whether cessation of business activities, the bank shall bear the burden of proof. Move away from the site or One's whereabouts is a mystery. cannot be identified as the only basis, stop operation), (of course, will not have additional if superior units also lost the qualification, can be ordered by the competent units), open or investors responsible for the cleaning of the legal person's property, the legal person property to pay off the debt, that is to say this part of the case should be single a litigation request, the liquidation.

6,      If there are other problems to discuss?

Two,       Have jurisdiction over.

1,            Jurisdiction (omitted)

2,            Jurisdiction: the law stipulates: usually the defendant has his domicile or the place where the contract is performed, (omitted), the performance of the contract: (2) "provisions of article sixty-two of the general principles of the civil law" eighty-eighth article second paragraph third and contract law, namely "the place of performance is not clear, payment of money, in the performance of a receiving payment the location (the point of dispute, because the bank account problem, the repayment of bank is to accept payment of the party); (1)"The Supreme People's Court on how to determine the approved loan contract problems ";The performance of the contract refers to the place of performance of a contractual obligation of contract. The loan contract is bilateral contract, subject matter for the money. Lenders and borrowers should be in accordance with the contract, and bear lend money to repay the loan and interest are compulsory, lenders and borrowers location is the place of performance of a contractual obligation of contract. In accordance with the provisions of the loan contract, the loan should be the first loan out, thus fulfilling the obligations shall bear the loan. Therefore, unless otherwise agreed by the parties, to determine the loan side where the contract is performed.

3,            Choice of jurisdiction: the domicile of the defendant, the performance of the contract, the contract is signed, the plaintiff's domicile, the subject matter is located

4,            There is no other problems to discuss?

Three,       Prescription

1,            Normal aging

2,            Special attention:

(1) the loan period agreed unknown or no agreement: pay attention to in the initial time difference with the IOU IOU

(2) the Supreme People's Court on theIf exceed the limitation the parties reach a repayment agreement shall issue shall be protected by lawTo reply, over a period of limitation of action, both parties have reached the original debt repayment agreement, shall be protected by law;

(3) the Supreme People's Court on theOver the period of limitation of action in the notice law single sign or sealReplied, "the people's Republic of China according to the general principles of civil law" article fourth, the provisions of article ninetieth of the spirit, for exceeding the period of limitation of action, credit to borrowers issuedOverdue loans due to noticeThe signature or seal, the debtor in the notice, shall be regarded as re confirmation of the original debt, the creditor debtor relationship shall be protected by law. But it should be with the "The Supreme People's Court on how to decide that the guarantor in the guarantee period expired after signing in the Dunning noticeReply: according to the "Regulations" phase difference between the guaranty law of the people's Republic ", expiration of the guarantee period in accordance with the law to guarantee the creditor does not claim the liability of the guarantor, guarantee to destroy. The suretyship liability after the termination of the written notice, creditors guarantor liability or liquidation of the debt guarantee, guarantor sign in the Dunning notice, the people's court shall not decide that the guarantor to assume responsibility. However, the notice of payment and consistent with the provisions of the contract law and the guarantee law of guaranty contract, and by the guarantor signature recognition, will be able to identify a new guaranty contract is concluded, the people's court shall decide that the guarantor in accordance with the new contract of guaranty liability.

4.Interrupt: provisions of the Supreme People's Court on several issues of limitations applicable to civil cases litigation trialArticleArticle 10 under any of the following circumstances, should be identified as the general principles of the civil law the 140th regulation "if one party makes a claim for", produce the effect of interruption of statute of limitations:

...... * Party for financial institutions, in accordance with the law or the parties have agreed that the accounts of the other party from the deduction of debt principal and interest

...... * if a party One's whereabouts is a mystery., the other party media at the national level or One's whereabouts is a mystery. party domiciled provincial influential published content of the announcement of the right to claim.

5.Aging related to guarantee:*Article twenty-firstThe expiration of the period of limitation of action of main debt, the guarantor has a statute of limitations as the primary debtor counterargument right. The guarantor fails to assert the litigation right of defense, assume responsibility towards the principal debtor to exercise the right of recourse, the people's court shall not support, unless the principal obligor agrees to pay. * mentioned before expiration of the guarantee period to sign the notice of, as long as they do not meet the new guarantee contract, no need to assume the guarantee liability.

Four,     Evidence

1,The need to give what card: * prove litigation subject qualification of evidence (such as identity cards, business license, the name occurs in the legal fact dispute occurred has changed, shall submit registration information. And the relevant parties even evidence) × proved the loan contract and guarantee contract evidence, such as loan contract, mortgage contract, the guarantee contract, guarantee, mortgage, pledge contract proof of ownership, mortgage registration, the registration of pledge, * that the fulfillment of the contract evidence (mainly the lender to perform the circumstances of the contract, such as loan promissory note, deposit certificates, the borrower to perform the contract situation of evidence, personally think that may be provided, in order to identify the facts of the case, in the absence of adverse circumstances for their next, can also provide) × constitute the interruption of prescription, the re calculated evidence (includingPayment discountOr repayment constitute the interruption of prescription or re starting) need special circumstances * other according to cases and litigation request to provide evidence

  To sum up, in any case (not just the case of loan contract disputes), must grasp the four aspects of factors, as long as the four aspects of a good grasp of, lawyers in the case, at least not blunder, so this should keep in mind!

Five,     Interest rate and interest

  1, interest rates: (1) borrowing, interest rate agreement is unclear or no such as non payment of interest (attention, is only natural person lending between, between natural person and enterprise agreement is unclear or not agreed, I personally think that is in accordance with the "the views of the people through" 124 or 91 years the supreme court opinions on people the court lending case 8 both lenders and borrowers to have no contract dispute, the interest rate cannot be proved, can refer to the same bank loan interest rate. The two terms are defined on controversial whether the two sides agreed to loan interest, the situation is not clear, in accordance with the bank loan interest rate decision to pay interest); if the agreement, according to "opinions" about people's court lending case, highest do not exceed four times the same bank loan interest rate;

2.Loan interest ratesIn 99 years, the original "RMB interest rate management regulations" implemented, is strictly in accordance with the provisions of the central bank's interest rate and its bound to perform; for 04 years "the people's Bank of Chinese on lending rates notice", by both lenders and borrowers according to commercial principles, and according to 04 years in October "on the adjustment of financial institutions deposit, lending rates notice", bank loans and policy according to the commercial management of the loan, the interest rate will no longer be upper management, loan interest rates downward float of the same. City credit cooperatives and rural credit cooperatives loan interest rates are still managed to cap the maximum broke surface coefficients, is 2.3 times the benchmark interest rate loans, loan interest rates downward float of the same

2, compounding the problem: according to the "opinions" about people's court case 7 loan, the lender shall not be included in the Jin Mou usurious interest. Creditors will interest into the principal interest that trial, only the return of principal. But according to "RMB interest rate management regulations", "the people's Bank of Chinese about RMB loan interest rates related issues notice", to not pay interest, by impose a punitive interest rate of recovery of profits. Directions: as the representative party put forward a corresponding or defense. Of course, some suggestions for understanding this can also be: how shall not lend or creditor interest will be included in the principal amount of compound interest, but does not prohibit by consultation between the two sides agreed interest will be included in the principal amount of compound interest, and shall not exceed the provisions of article sixth of the bank loan interest rate four times the limits in the calculation of compound interest, or beyond parts shall not be protected

3, impose a punitive interest rates: according to "the Supreme People's Court on the late payment penalty shall be calculated in accordance with the approved" problem which the standard according to the overdue loan interest rates, 04 years ago, is a 2/10000 point, 04 years published "notice" the people's Bank of China on issues related to the RMB loan interest rates, according to an additional loan contract specified in the loan interest rates 30%-50%. Personally, if the contract interest rate contracts, according to the rate of 30-50%, no words on the benchmark interest rate, I personally operation is generally refer to this as the benchmark interest rate for 50%, at a high rate of cases is higher than 2/10000.

4, business lending, contract is confirmed invalid after treatment (here refers to the interest): according to the rules of the judicial interpretation, inter enterprise lending is confirmed to be invalid, the principal or interest is offset to be seized, but according to the Guangdong Provincial Higher People's Court issued "on the trial loan disputes forum summary" and 1999 issued "on the trial of several kinds of financial disputes of a number of opinions" is invalid for the loan contract between enterprises, require the borrower to repay the principal and shall be in addition to, according to the corresponding interest rates on bank loans for the Lender Interest loss. The provisions of the relevant documents and the Supreme People's court 1990 issued this kind of cases only the return of principal, direct lending had made or shall all be recovered interest requirements of distinction,: if the contract is confirmed invalid situation (such as the court interpretating right after the change, should appeal) at the same time advocate interest.

5, to explore the problems: pay the interest or first? According to the "contract law" article 205th: the borrower shall pay the interest according to the agreed time limit. On the payment of interest period was not prescribed or clearly prescribed, in accordance with the provisions of law sixty-first is still not sure, the loan period is less than one year, shall be paid in return the loan; loan period in more than a year, shall be paid at the end of each year, the remaining time is less than one year, shall in return the loan to be paid. Whether the provisions that actual principal principle pay the first payment of interest?

Six,       Guarantee

1, not to issue mortgage registration: usually by mortgage claim priority,

The guarantee law prior to the commencement of the guarantee period to clear: if the creditor has within the statutory limitation the principal debtor claim rights, so that the main debt not exceed the limitation, but not to guarantee people advocate the rights of creditors may, within 6 months from the date of the notice issued (from August 1, 2002 to January 31, 2003), to ensure the claim. If no claims, guarantor assumes no responsibility.

2, mortgage, guarantee parallel problem: both its collateral warranty or guarantee problem, must at the same time that mortgage guarantee liability and warranty liability, because debt repayment has problems, if you give up the mortgage collateral, exemption may lead to guarantee.

Attention should be paid to the problems in the prosecution materials:

1,            Parties: should try to put all the breaching party shall bear the obligations of the principal and the litigants, avoid omissions, such as mortgage, pay attention to whether the collateral there, if there are no added debt obligations, the transfer no debts, there is no third party single party promises are required to pay attention to.

2,            The claim: * claims must be clear, including specific parties, assume what responsibility (for example guarantee liability, liability), how much interest on the principal amount, interest calculation (in what is the base, begin to have a "plan to temporarily when <",> according to what the interest rate) x mortgage guarantee responsibility, the basic situation of collateral is generally indicate

3,            As the plaintiff litigation request, must be clear interest calculation of liquidated damages, the defendant to avoid litigation procedure delay.

4,            Reasons: to write only the basic facts, the disputed facts, as far as possible with a pen, in addition, try to avoid writing clause of law application specific.