Beijing Shijingshan District people's Court: in the folk lending case investigation report

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  • / Author: Aaron Lewis
Beijing Shijingshan District people's Court: Research Report on folk lending case
The 2008 global financial crisis swept the world, the world economy suffered "had different degree of impact". Since 2011, second financial crises and widespread influence social economy countries, on China's real economy healthy, orderly development has also brought a severe test. With the boss "southeast coastal area Run away", enterprise capital chain rupture frequent, borrowing immediately become the focus of public opinion. Recently, the people's Bank of Chinese relevant responsible person said in an interview with Xinhua, the legitimacy of private lending has the system level, is a useful and necessary supplement to the formal finance. The Beijing Shijingshan District people's court investigation in 2005 2008, especially since the financial crisis began, folk loan disputes appeared some new problems about the legal and moral level, increasing economic risk requires judicial attention. Folk loan "identity confirmation" at the same time, in response to the changing characteristics of this type of case, dispute resolution should also adjust train of thought should be changed when "".
The new characteristics under the financial crisis background, folk lending case
(a) surge in the number of cases. According to statistics, from 2005 to 2011, the Shijingshan District court in such cases the number of nearly two thousand, an average annual increase of more than 50%, shows blowout state. In the type of contract cases have become a major after the case of labor contract "".
(two) Regulation withdrawal rate fluctuations. In the case of private lending rescinding rate fluctuations. From 2005 to 2006 two years, the types of cases the rescinding rate was 70%. In 2007, the rescinding rate was 76%. From the beginning of 2008, the types of cases transferred from quantity decreasing year by year, adjustable withdrawal rate remained at around 65%.
(three) absent, announcement judgment rate (the total sentence) and debt automatic fulfillment rate "rise and fall". Two years from 2005 to 2006, the number of Shijingshan District Court concluded the folk lending case is 35, the number of absence and announcement decision 11 cases, accounting for all the types of cases 31%. In 2007, the number of accepted folk lending case verdict was 43, the number of absent and announcement of decision 25 cases, accounting for all the types of cases 58%. But from 2008 to 2011, the Shijingshan District court default and the number of announcement decision folk lending case of all decision of this type of case 79%. From 2005 to 2006, the Shijingshan District court folk lending case execution rate was 83% (non after executive executive program, only to perform data court Statistics), 80% cases to perform the debt cycle in 6 months. In 2007 the execution rate to 67%. After 2008, the execution rate has dropped to about 40%, 71% cases to perform the debt cycle delay to 1 to 2 years, and perform time-division multiple batches (see figure one or two).
(four) the trial period. Traditional to suspend the trial factors increase non hear civil cases in borrowing, leading to "infinite" to extend the trial period. Before 2008, the trial period in more than six months accounted for all of this kind of case 90% (the rest for the announcement and other traditional legal trial due to suspend the trial period). From 2008 to 2011, non conventional suspension of hearing factors affecting hearing cycle folk lending case accounted for all the types of cases 20%, and the proportion is increasing.
(five) to increase lending target. Before 2008, Shijingshan District court folk lending case litigation in 50000 yuan, accounting for all the types of cases in which case litigation, 38%, more than 1000000 yuan on average 1 to 2 cases. From 2008 to 2011, the Shijingshan District court folk lending case litigation in 50000 yuan, accounting for all of this type of case 85%, case litigation amount increased by 36% over the same period, in which case litigation, the amount of more than 1000000 yuan of annual growth of more than 400% cases.
(six) final bid serious "shrink". In this type of case in Shijingshan District court accepted the case, the amount of litigation than closed the amount subject to lower case, of all cases in the 2005 to 36% 2007, 2008 to 2011 averaged 73%.
(seven) the property clue less, for the preservation of a high proportion of diversification, preservation. Before 2008, folk lending case party applies for property preservation number is less than 10%, and the preservation methods are the freezing of bank deposits. In 2008, the parties apply for property preservation ratio has been as high as 30%, and for the preservation of the way from the freezing of bank deposits over the past single to freeze, vehicle housing transfer procedures, the freezing of bank deposits, funds, stocks and other securities in many ways. From 2009 to 2011, the parties apply for property preservation ratio rose to 37%, for the preservation of the way to the further development of the stock, futures, personal items and more detailed way.
Genetic analysis of two new features, folk lending case
(a) surge in the number of cases and the reasons for the increase in lending target. On the one hand, reduce the cost of litigation to the litigants burden, the parties are more likely to engage in a lawsuit; on the other hand, the rapid development of economy a large number of private capital wealth makes people for days and months multiplying various channels for investment income; on the other hand, with the further development and deepening of economic system reform, some urgent personal is often they need to get from the formal financial institutions in the existing funds; the most important point, people between the integrity of a sharp decline, after the establishment of the lending relationship, due to various reasons, often refuses or fails to perform, resulting in litigation cases, large amount of debit and credit growth is surprising.
(two) adjusted to withdraw rate fluctuations. From the above data is not difficult to find, the importance of mediation on 2007 in the courts, so that the whole case withdrawal rate adjustment than in previous years has risen greatly. From the economic crisis that began in 2008, due to the lack of integrity of the debtor, the possibility to reach an agreement with creditors continue to decrease, leading to withdrawal rate adjustment and the large decline.
(three) the absence and announcement judgment rate (the total sentence), automatic discharge of debt "rise and fall" and cause an extended period of trial. With the rapid increase of the lending target, there are some people who do not in good faith-based, abuse of the law to cover up their illegal purpose, to achieve its maximum "litigation benefit at the minimum cost of litigation". For example, malicious from creditors (exist, knowing that the credit refuses to appear in court litigation), abuse the jurisdiction objection right (knowing that the jurisdiction is no problem, delay the trial period), random starting procedure of judicial identification (knowing that the authenticity of evidence is no problem, delay the trial period), false evidence is frequently present (knowing that the evidence is false, confuse the public legal interference, seriously affecting the court for evidence of repeated).
(four) final bid "shrink" the reason. borrowers filed in the procedure, usually require the arrears repayment of principal and. While most of the litigation, arrears to pay interest to early repayment grounds, require the borrower to give up part of the claim, in order to realize their own debt as soon as possible, the borrower often compromise. And some people often false debt mediation, delay the repayment period, the legitimate interests of the borrower to fight the lawsuit expense. Arrears for the accused, the borrowers in the passive position, forms the unequal litigation, severely damaged the interests of the borrower.
(five) the property clue less, a high proportion of reason for preservation, preservation of the variety of ways. The parties malicious transfer property is becoming more and more serious, property available for enforcement clues is less, and the parties to apply for property preservation ratio increased, the preservation of diversification. Some arrears lawsuit from debt in order to avoid litigation, litigation, the malicious transfer property, refuses to perform the debt. And the borrower has no arrears of other property available for enforcement clues lead to litigation, come to a deadlock or "short referee", damage the legitimate rights and interests of the borrower.
Countermeasures and suggestions to solve three, folk lending case
(a) to explore new mode of trial, fully exert mediation effectiveness. According to the acceptance of private lending surge in the number of cases and other characteristics, the "121" Shijingshan District court trial mode. That is assigned to a rich quick tribunal mediation experience judges, led the two be in the full vigour of life of judge assistant and a senior clerk, through the use of quick judicial mediation and the types of mediation mechanism, fast efficient trial on the types of cases. According to statistics, from 2008 to 2011, the immediate judgement court folk lending case accounted for all the types of cases 96%, the total number of closed cases concluded 99%. While the speed courts concluded the folk loan disputes, transfer from the law case 83% cases.
(two) active query information, strict careful preservation measures. For the case of litigation amount increased significantly, the borrower interest damage characteristics, the Shijingshan District court by asking the household registration information query borrower and folk debit and credit in arrears, arrears of the master contact, including address, telephone, work units, quick delivery to facilitate the timely litigation, trial. By the borrower to provide information and query the Bureau of industry and commerce, the administrative department of real estate, vehicle management, financial institutions such as banks, grasp the arrears folk lending case property of clues, including housing, savings, vehicles etc.. Inform the importance of not to initiate the litigation preservation of property preservation for the pros and cons, by its own measure in the lawsuit, in order to improve the execution efficiency of mediation and litigation in the. It should be pointed out is, the Shijingshan District court also pay attention to the various departments within the hospital cooperation, improve the quality of the trial, civil court actively and executive bank group communication, timely details of arrears to inform implementation team family bank, property and the bank is responsible for the query, once to be found the implementation of the property, can immediately feedback Civil Tribunal, and assist the work of property preservation. The parties effectively reduce litigation risk, reduce unnecessary litigation, trial efficiency is improved. At the same time, the Shijingshan District court also deeply understand the Supreme People's court's recent file spirit, strict, careful to adopt property preservation measures, the flexible use of protective measures to reduce the impact on personal caused. All the cases were from the vice president in charge of examination and approval of preservation.
(three) the active interpretation of law, effectively reduce the risk of litigation. The parties malicious transfer property, characteristic property available for enforcement clues less, Shijingshan District court for legal interpretation necessary for the folk lending case, inform the borrower a correct view of litigation risk. The application of the proposed property preservation, processing timely in accordance with the law, effectively reduce the risk of litigation cases, improve the referee after the implementation, make each party to a fair, efficient, convenient, clear.
(four) extending the trial function, strengthen the integrity and moral education. Aiming at the absence and announcement judgment ratio increased year by year in the case of private lending, and automatically discharge the debt of the execution rate decreased year by year, Shijingshan District extension of their judicial functions, to strengthen the party's traditional moral education. In the whole process of the court trial, publicity and education to the concept of good faith, in order to conduct social identity and credit of honesty credit moral condemnation, establish credibility is lending Fu concept.
(five) the internal study, and actively carry out publicity. The parties note too simple and easy to cause ambiguity characteristics, Shijingshan District court to research, foreign legal publicity and other multi-channel emphasize the importance of a complete loan agreement. Both lenders and borrowers tend to write a simple IOUs, indicating the amount of the loan agreement, no interest, the repayment period, once a dispute, the parties responsibility becomes more difficult. A complete agreement often agreed interest does not exceed four times the bank lending rates over the same period, the housing property or automobile estate as collateral property, the terms of the agreement and the corresponding liability for breach of contract. Shijingshan District court through the analysis of internal investigation and case, importance of foreign necessary live the trial scene, all the way to the people about a complete loan agreement, which provides intellectual support and a strong legal guarantee for the folk debit and credit standardization.
(six) to strengthen information screening, effectively avoid the false litigation. For the parties to resort to deceit in the folk lending case phenomenon, discard the false and retain the true, effective screening is the focus of Shijingshan District court for trial. Borrowing by the sincerity to maintain, easy to cause the dispute, may bring the risk of economic, legal and moral. Shijingshan District court of the court room will be the necessary special trial and related cases, query the parties related folk lending case information, information effectively discriminate from it, try to avoid the emergence of false litigation, fictitious debt situation. If the trial error, start the trial supervision procedures timely, correct legal documents and making because of the misleading.
Although the "several opinions" Supreme People's Court on the trial of cases of borrowing recently published, but still need to formulate relevant laws of borrowing loans, interest, liability for breach of contract, jurisdiction, guarantee and other aspects of the specification, in order to effectively protect the legitimate interests of both the folk lending. In addition, China is currently no honesty legislation can not say is a regret. Make credit law, effective punishment of the lack of honesty, so as to maintain and promote the sound development of the socialist market order is in real life is very necessary. At the same time, lawmakers should also pay close attention to the integrity of the application of the law, not simply that the law can completely solve the various problems in the lending relationship. Prevention is better than cure, the lender shall sign a promissory note to specification in lending, agreed to clear, and the borrower's character, credit, borrowing and repayment risk do know the score. Credit risk, loan need to be cautious.
(group members: Wang Zhonghua An Hongzhuang Du Changhui Chen Shilei Yi Zhenchun Lu cast)