Borrowing shall be based on the actual delivery date loan

Author: 2011-1-10 Jiang Yan source: Oriental

Key tip: according to the "contract law" of the people's Republic of China, folk lending department practice contract, except where the parties enter into a contract, still need to practice the delivery of borrowing, civil lending relationship between the parties to the validity, form the mutual rights and obligations, the obligor can assume corresponding civil liability.

[case]

In September 5, 2006, Gu to guarantee the identity obtained from Xu somewhere to 150000 yuan loan, at noon that day, Lee in the pre printed "today the borrower because Lee to Xu loans 150000 yuan, agreed in 2006 October to 5 by the end of the day before the return, if overdue penalty interest of the corresponding processing" note the "borrower" signed and stamped, Gu in the "guarantee" after signature and stamp. Signed, to deduct a monthly interest, when the balance of delivery, and annotated "interest paid a month on the iou".

The other identified: Xu in March 20, 2007 issued a certificate on the same day, including its "received the guarantor to the borrower for Lee secured loans 150000 yuan, the loan principal RMB Wu Wanyuan and interest generated RMB Baqian 300bn Shi Yuanzheng, by the guarantor to repay me".

In March 20, 2007, Gu to Jiangsu province Nanjing Baixia District People's Court of claims, the generation of Lee to repay the borrowed Xu, for any Lee returned to a generation of advances to the principal and interest 150000 yuan 8250 yuan.

Lee argued, no objection to the note itself, but the money was not the IOU borrow, but the plaintiff himself to Xu Moujie money, it is only a signature on the borrower, the plaintiff has the money to return Xu, the debtor creditor relationship have been eliminated, can no longer guarantee people's identity to the Lord right, this also did not get, but actual by others to borrow, and the plaintiff in the payment of loan, which has been the 7500 yuan as interest.

A Nanjing court after hearing that, the guarantee, have the recourse against the debtor. In this case, the defendant Li and Xu's borrowing relationship, as well as the plaintiff to guarantee people's identity, have a confirmed. A proof of a certificate issued by a guarantor of Gu has been borrowing and interest payments on behalf of the Xu payment. Gu as Li to a debt guarantee, in Li Mou not agreed repayment, the reimbursement owed to Lee, Lee should ask Gu repay generation advances. The Gu Mou, Li Mou is a dispute, whether by Li borrowed and borrowing amount. Li to prove the authenticity of the IOUs, no objection, but argued that this practice is Gu to Xu borrowed, and then by Gu an actual borrowing and Zou Songlin.

The court thinks, the parties have the responsibility to provide evidence to confirm their claims. Lee is provided with a Gu, a telephone recording, but according to the telephone recording, Gu a recognized Xu will be 15000 yuan to give Gu; Xu state borrowing first gave Gu, there is a direct to the Lee, and think this is Zou away, the above two recording evidence can not prove Lee about "the loan is to yourself to Xu borrowed", and "the loan actual by the zoumou the use of" argues that opinion. Witnesses and Zou, Pang written testimony, without the two witnesses to testify in court, and Gu of two witness testimony is not recognized, the court shall not be accepted for witness Zou, Pang testimony. Lee's the excuse, because there is no factual and legal basis, the court shall not be accepted. On the loan principal and interest, Gu Mou, Li Mou and both parties agreed, in the payment of loan interest paid, "one month". But the process and the amount of interest paid, the statement is not a: Gu a statement, in the loan to pay Lee at that time, Lee agreed interest is calculated by 1500 yuan per month, and active deducted 1500 yuan, on the return of Gu; Li stated, in Gu payment loan, Gu myself except 7500 yuan, known as the first month's interest. The court thinks, Gu Mou, Li although both sides to pay interest on the amount and not a statement, but can be recognized in the payment of loans at the time, some money for interest payment the gu. On payment of the interest is deducted from the payment or active, both sides without evidence to prove, but Li does not actually received 15000 yuan of loans, the court recognized, interest is deducted from the borrowing in the payment of loans, the actual amount of the loan shall be the amount deducted interest. On the amount of interest, Lee has argued that for $7500 a month, but there is no evidence to confirm that, now to think of 1500 yuan a month, not in violation of the law, the Court confirmed that 1500 yuan per month, the loan principal of 148500 yuan. The Gu Mou claims from October 5, 2006 to March 20, 2007 the total interest 8250 yuan, does not violate the provisions of the law, the court shall support. Accordingly, in August 20, 2007, the hospital decision within ten days, a one-time payment to a principal of 148500 yuan and interest 8250 yuan Lee from decision date, a total of 156750 yuan.

After the verdicts, Li refused, appeal, the appellant reason is: Although the outsider Xu issued loans for 150000 yuan IOUs to existing lending relationship on the surface, but in fact did not actually get into the action of 150000 yuan loans, according to the rights and obligations consistent principle, the appellant has no to make a repayment obligations. The promissory note stating only has deducted a monthly interest is not clear, the amount of interest, the appellee state interest for 1500 yuan a month, but the witness is 7500 yuan per month, the court of first instance verdict unjust. The respondent was of the view that, in accordance with the law, whether the debtor is the direct beneficiary or used directly, independent of the formation and the relationship between claims and liabilities of the. The guarantee, have the recourse against the debtor. A judgment objectively and impartially, request rejected the appeal, upheld the.

The intermediate court proceedings, 150000 yuan loans the case litigation Lee claims, is Gu from Xu somewhere borrowed excluding one month interest 7500 yuan, but also directly lent Zou, so as to apply the zoumou to testify in court. The witness appearing in court as a witness statement Zou, I with attend to a turnover of 150000 yuan, he said that interest will be higher, after he called me, said interest 5 (or $7500 a month), noon time I told Lee, Pang Mou to his office, to say I was overseas accounts, he do the witness, Lee and Gu on the promissory note signed, then the deduction of 7500 yuan of interest, to will be 142500 Yuan directly to me. Then I went into the bag away, for my own use. In October 13th I will be 50000 yuan to the Gu, I told Lee went together, the rest of the money is not also.

 For Zou testimony, Gu a testimony that Lee and Zou Mouyou direct stakes, zoumou many loans by Lee handled, so the zoumou testimony is not recognized. Li Mouze court statement: "he (refers to Zou) with Gu to borrow 150000 yuan turnover, the second day he (Zhigu a) say ready, let me sign, you can give him. Zou want friends property as collateral, Gu said too much trouble, he (the Zhigu a) to do the security, then said Xu did not believe Zou, so let me write iou".

Intermediate people's court after hearing that, the basis for his claim facts or rebuts the facts, have the responsibility to provide evidence to prove the. There is no evidence or the evidence is not sufficient to prove the claim, by the proof should bear the adverse consequences. In this case, 150000 yuan loans in this case Lee claims, is Gu from Xu somewhere borrowed excluding one month interest 7500 yuan, but also directly lent Zou, applied for the witness zoumou to testify in court, the appellee Gu to Zou testimony is not recognized. For Zou and Li Mouyou direct interest relationship,Zou's testimony and other evidence verifies validity not overthrow, Lee issued a,So the zoumou to attend to a loan 150000 yuan, Gu interest withholding 7500 yuan of testimony, the court shall not accept. For the Borrower Lender Xu Li and ensure people to trust to the actual delivery of loan, the loan finally actual who use does not affect the establishment of a loan borrowers and Lee between debtor creditor relationship, Lee should bear the legal consequences as borrower issue IOU, so the first instance court ascertained that the Gu as Li to a debt guarantee, in Li Mou not agreed repayment, the reimbursement owed to Lee, Lee should ask Gu repay generation advances is not wrong. Of interest, because the two sides have different opinions, the court of first instance to a self identified as 1500 yuan a month is not properly according to the. To sum up, the first instance court ascertained that the facts are clear, the applicable law is correct. Can't Lee's grounds of appeal was established, the request, does not support. In August 20, 2007, the hospital decision rejecting the appeal, upheld the.

In 2008 July 11 to the high court for retrial, although to Xu issued 150000 yuan note, but Xu does not actually perform the obligation of delivery of 150000 yuan,Gu and Xu, no evidence of delivery of a $150000 loan to the,It also has no obligation to repay the loan, the guarantor has no right of recourse. The original verdict that the facts are not clear, erroneous application of the law, request a retrial, revocation of the original sentence, rejected the prosecution request. Gu believes that, Lee told me borrow, I to a loan, the three party after the deed, Xu will the money to my bank card, I'll put the money to Li Mou, Li Mou give me a monthly interest 1500 yuan, I wrote "interest in a paid one month". The original judgment is correct, request to reject the application.

The high court review process, Lee to the hospital for Agricultural Bank of China branch in Jiangsu Province Department of inspection chamber and a transcript of the conversation, make a statement: "to speak with me, Li Mou to borrow some money, I will be 150000 yuan to take a card, a secured by Gu Li, lent a 150000 yuan, loan period of one month...... At that time, no interest, I also do not know Gu and Li is how to talk...... At that time, didn't give me my interest. Due in a month, to give me the money, then money is printed on the computer, I am in the noon, Li Mou signing......". The witness Pang Moulai the statement "Zou asked me to accompany him, may be my car, we two people connected to Lee to go to office, Lee to sit by the door, to sit inside behind a desk, Gu from the desk drawer in the come up with the money on the table, and took out a note to say, money has been put in place, you sign, would give the note threw to Li Mou, Li Mou is signed, Lee signed, gave the note to Gu, Zou put money on the table in a bag. Money is 142500 yuan, Gu said interest to buckle down, but a few months of interest, I don't know." "They had to say, I don't know".

That the provincial high court review, Xu for lenders, borrowers, Lee Gu to ensure the three party is to establish a form of loan, guarantee contract, from the evidence and the statement can be seen, is to convey to Xu Li to borrowing meaning, Xu will be directly payment of Gu, Xu and Li did not negotiate loans, no negotiation interest and other issues, a consensus and Lee are not borrowing. "Contract law," the people's Republic of China, the provisions of article 210th, between natural persons, the loan contract, the lender makes the loan effect. The loan contract between natural persons department practice contract. But in this case, Xu as the lender does not take money to Lee, the existing evidence that Xu will be delivered to the guarantor of a paragraph Gu, Gu and handed the Zou, although Lee is still in a signed, but there is no evidence that the clear by Zou collection of the loan, Lee also did not get money. The loan contract, the borrower, the lender shall have the rights and obligations of the legal guarantee of clear, the guarantor's obligation is overdue debt outstanding, should assume responsibility for repayment. Gu as a guarantor of a loan obtained from lenders somewhere, there is no legal basis, the section, has changed its legal status as a guarantee of human, the section, which has complete control of the money, and not to Lee, but to zou. Thus the original judgment Lee responsibility for repayment, obviously inappropriate.

In summary, the petitioner's application is in accordance with the "PRC Civil Procedure Law" article 179th (two), (six) the provisions. Rule.

 One, the instruction of Jiangsu province Nanjing City Intermediate People's Court of retrial.

Two, the retrial period, to suspend execution of the original judgment.

[comments]

One, from both sides of civil borrowing behavior of the party and its legal rights and obligations, borrowing in the case of a lender, borrower, Lee, the guarantor is Gu Mou, both sides is established in the form of loan contracts, guarantee a contract, loan contract is the main contract, guarantee department of contract, civil borrowing behavior should occur in the lender and the borrower Xu Li. China's contract law, guarantee law lenders and borrowers, the guarantor of the rights and obligations are clear and specific provisions, the first duty of lenders is the borrowing shall pay the borrower, the borrower agreed to use money and repay the loan principal and interest, and the guarantor's obligation is in the loan fails to return after, should assume responsibility for repayment. Existing evidence suggests Xu as lenders did not apply to the borrower Lee delivered borrowing, but as a guarantor of Gu does not have the rights and obligations of the lender may borrow from somewhere, on whether the borrower Lee by borrowing and objection. The act does not meet the conditions for the entry into force of the contract law and other related laws.

Two, from both the borrowing behavior of the parties, in accordance with the law, the contract is between the parties set up, change, terminate civil rights and obligations of the agreement by the parties, offer, promise to reach a consensus and agreement. In this case, the lender and the borrower Li Xu does not directly contact, to the loan of 150000 yuan, the amount of the loan period, between the two sides, use, interest, through consultations, no consensus; but Gu to Lee loan by loan obtained from somewhere, perhaps, by the Gu the loan period, interest standard, and when the buckle a month interest, should buckle interest did not return to the lender Xu, so this case Li and Xu and no borrowing between intention agreement, only Gu respectively and Xu, Li Mou are borrowing the meaning, and then is to provide printed IOUs, Lee signed by. Xu and Li are not in conformity with the contract agree elements.

Three, the loan from the flow of funds. Xu and Li sb as lenders and borrowers, after the two sides reached a consensus on the basis of borrowing, Xu should be according to the law, the borrower is delivered to Lee, completion of the contract law, the obligation of delivery. In this case, is the lender Xu according to guarantee to a request, the delivery to Gu, and have not delivered directly to the borrower lee. Gu as a legal guarantee, in addition to the borrower expressly entrusted, no generation directly accept the rights and obligations of the borrower borrowing. The existing evidence, to accept the loan, transfer the loan to third Zou, no legal and factual basis. To accept the loan, changed its legal status, as a loan guarantee of human's nature guarantees, as from the actual borrower Xu somewhere, borrow, it is right, disposition right, its not according to Xu and Li contract between the delivery to the Lee loan obligation the money to others. There is no evidence that Lee is clear by third people accept money, Lee has no legal obligation of repayment.

Four, from the private lending legal force condition. "Contract law," the people's Republic of China, the provisions of article 210th, between natural persons, the loan contract, the lender makes the loan effect. The loan contract between natural persons department practice contract. In this case, the actual accepts the borrower Zou court statement recognition, witnesses Pang confirmed Zou received loans, Lee also denied receiving a loan, Lee has not actually accept the loan fact, should be able to identify. Thus a loan will not actually delivered to Lee, between the two sides have IOUs, but folk loan contract does not come into effect. The trial, only pay attention to "IOU" contract signing contract, while ignoring the folk loan department practice contract, legal attributes to the actual delivery have the force of law, is clearly contrary to the relevant provisions of contract law.

To sum up, in this case, the lender and the borrower between Xu Li, is not desirable behavior borrowing consensus means, Xu is not the loan actual delivery to Lee's delivery behavior, therefore, many private lending and Lee is not established, also do not take effect. Lee is not accordingly take