Hainan province Haikou City Intermediate People's court

                                  Civil The verdict

(2011The Chinese and French people two) with the word no.70No.

    The appellant (defendant in the original instance): Hainan* * *Refco Group Ltd. Address: Haikou City, North Longkun road Jingrui building* * *.

   Legal representative:* * *Chairman.

   Agent* * *:, Hainan foreign economic law firm lawyers.

Appellee (the plaintiff):* * *Male, born in May 4, 1964, Han nationality, live, Meilan District of Haikou City* * *Road* * *The real, the Department of Haikou* * *Limited company general manager.

Attorney: Tang Shubao, lawyer of Hainan victor.

The defendant: Hainan* * *Resources Development Co., ltd.. Place of residence: Haikou Longkun Road No. 2 Pearl River Plaza* * *.

Legal representative:* * *, general manager.

Agent.* * *, Hainan foreign economic law firm lawyers.

The sea of Nanjing Hao Refco Group Ltd (hereinafter referred to as the Beijing Hao group company) with the appellee* * *The defendant, Hainan Jing Hao Mineral Resources Development Co., Ltd. (hereinafter referred to as the Beijing Hao mining company) loan contract disputes case, the Haikou City Xiuying District People's Court (2010) show people double No. second civil judgment, and appealed to the hospital. The court, a collegial panel to hear. The school has now been finalized.

The trial court found, in April 1, 2007, Beijing Hao group company (Party A) and Huang Xiaowei (b) signed a "loan agreement", the agreement: through bilateral friendly consultations, agree on the Party B Loan matters. Party A Party B payment by 5000000, both sides agreed to loan since April 1, 2007 by 2.5% per annum, at the end of the month to pay interest once. After the signing of this agreement, the first payment of interest on March this year, 600000 yuan 31 days cumulative payable; principal part within a month to 2000000 yuan, the remaining six months to pay. In October 30th the same year, Beijing Hao group company issued a "repayment plan" to Huang Xiaowei Zai Ming, the agreement: "in view of the current Division I with the HNA Group strategic restructuring period, and some objective causes the flow of cash flow difficulties, so it is unable to continue in April 1, 2007 signed a loan agreement with Mr. Huang Xiaowei, to reflect the Division I actively repayment will, after careful study, the repayment plan is formulated, and will strictly abide by the execution. A principal part, divided into the following three stages: before 31 December 1.2007 years to pay back the principal of 1000000 yuan. In April 2.2008, 30 days to return the principal 2000000 yuan. In June 3.2008, 31 days to return the principal 2000000 yuan. The two part, according to the April 1, 2007 interest both sides signed the agreement in the contract interest rate calculation, deducting the part payment, the remaining part since 2007 November, the RMB 50000 yuan a month, until the payment date". Then Huang Xiaowei told the Beijing Marriott group company made a payment instruction, as follows: "please Kinghogroup company will give me the repayment 300000 yuan (interest) to the following account; Account Name: Haikou Sheng Huang restaurant Co. Ltd.; Bank: ICBC dragon branch, account No.: 220102080920001838". In April 29, 2007, Haikou Sheng Huang Le Grand Large Hotel Co. Ltd. received Kinghogroup company repayment 200000 yuan. From July 17, 2007 to August 26th of the same year, Huang Xiaowei respectively, 5 received Kinghogroup company repayment 160000 yuan (interest). From November 1, 2007 to September 25, 2008, Huang Xiaowei respectively, 17 received Kinghogroup company repayment 460000 yuan (interest). From October 22, 2008 to October 29, 2009, Huang Xiaowei respectively, 10 received Beijing Hao group company and Lin Xiaojing generation of Beijing Hao group company repayment 1000000 yuan (interest). From April 29, 2007 to October 29, 2009, Huang Xiaowei received a total of Beijing Hao group company interest repayment 1820000 yuan. In October 10, 2008, Beijing Hao mining company (Party A) and Huang Xiaowei signed a "security agreement", agreed: after negotiation, both parties have reached the following security matters. One, Party A agrees to the name of molybdenum ore prospecting (No.: 4600000610010) 50% of the proceeds for Jing Hao group company with Huang Xiaowei in April 1, 2007 signed a loan contract guarantee. Two, the warranty period: until the loan contract terminated. Three, the warranty period, if there is any change, Party A shall transfer the exploration right, should be agreed to by Party b.. Four, since the agreement was signed up within a year and a half, Party B shall not recover the debt to Party A. Again, Beijing Hao group company legal representative Lin Guiquan proved that: since 2006, because of the company's cash flow difficulties, Huang Xiaowei repeatedly to borrowing, as of April 1, 2007, a total of RMB 5000000 yuan, the loan is in the name of the company to borrow, both for the company. The company transferred to the debt will be transferred to Hainan Yanlu Wood Co. announced the company. In February 12, 2009, Hainan Yanlu wood industry limited company to owe Huang Xiaowei 2000000 yuan in confirmation shall: "end 200 years in December 31st, the debt our confirmation". In addition, August 1, 2006, Beijing Hao mining companies and China bank Limited by Share Ltd Hainan branch signed a "contract of mortgage of maximum amount", Beijing Hao mineral companies voluntarily to enjoy the legitimate right of Hainan County of Baoting province village molybdenum census (license No. 4600000610010) prospecting, in under the contract secured debtor Beijing Hao group company and China bank Limited by Share Ltd Hainan branch signed the "loan contract", at the same time each agreement signed all the credit debt balance of guarantee. In September 16th the same year, the land resources and Environment Department of Hainan province Qiong soil ring capital letter [2006] 463 replied: "to Hainan Province on the Baoting Xincun molybdenum census (license No. 4600000610010)" the exploration right mortgage. Beijing Hao mineral companies enjoy Hainan Baoting Xincun molybdenum mineral prospecting, to change: T46120090602030629; valid period: June 20, 2009 to June 20, 2011 change. In January 29, 2010, Huang Xiaowei urged the court to initiate proceedings, requesting an order: A, Beijing Hao companies pay RMB 5000000 yuan and 2925000 yuan of interest; two, Beijing Hao mining company to assume responsibility for the loan; three, Beijing Hao group company, Beijing Hao mining company in the case of litigation expenses burden.

The judgment of the first instance that: Huang Xiaowei and Jing Hao Group signed the "agreement", the parties are in the basis of the agreement signed, is the true meaning of the parties, except the agreed interest rate of 2.5% is too high is invalid, the relevant provisions of other content does not violate state law, is the contract, shall be governed by the legal protection. Before signing the contract, the original legal representative Lin Guiquan a "loan agreement" and Beijing Hao group company's testimony. At the same time, Jing Hao group company to Huang Xiaowei issued the "repayment plan" and Huang Xiaowei and Jing Hao mining companies signed the "guarantee agreement", can be identified Kinghogroup companies to borrow 5000000 yuan in Huang Xiaowei. And Beijing Hao group company also admits the fact that only the loan, the amount borrowed is uncertain, but it does not provide relevant evidence. The defense is not established, the court shall not accept. Huang Xiaowei advocated borrowing Kinghogroup company 5000000 yuan, the facts are clear, the court shall support. Beijing Hao group company fails to repay the loan principal and interest, constituted a breach of contract, should bear corresponding civil liability. About Huang Xiaowei advocated Kinghogroup company paid interest 2925000 yuan request, four times Kinghogroup company defense Huang Xiaowei advocated a monthly interest rate 2.5% higher than bank lending rates over the same period of 5.325 ‰ (2.13%), according to the relevant provisions of the Supreme People's court "about people's court opinions" loan case, more than similar loans 4 times over the same period of interest rate of bank interest is not protected. The Beijing Hao group company defense contract interest high established grounds, the court shall be adopted. Beijing Hao group company should be 4 times calculated for the same period the people's Bank of Chinese similar, the payment of interest to Huang Xiaowei (as of December 31, 2009) 3514500 yuan (RMB 5000000 * 2.13% * 33 months =351.45 million), after deducting the interest paid 1820000 yuan, still owe 1694500 yuan. Since January 1, 2010, interest, 4 times by the people's Bank of China loan interest calculation. Huang Xiaowei advocates the Jing Hao mineral company to assume responsibility for the loan, according to the relevant provisions of the State Council Interim Provisions "transfer of management transfer land resources and environment department" of the mining rights, prospecting right, mining rights as property rights, collectively referred to as the mining right. The mining right mortgage. If the debtor defaults, the creditors shall have the right to apply for realizing the mortgage right, and from the disposal of mining rights income in accordance with the law ". In this case, Beijing Hao mining companies and China Limited by Share Ltd Hainan branch signed a "contract of mortgage of maximum amount", Beijing Hao mineral exploration right and the voluntary legal right (license No. 4600000610010, the card number to change to: T46120090602030629) between the group company and Beijing Hao China bank Limited by Share Ltd Hainan branch, to guarantee the "loan contract" signed, and the relevant departments to handle the mortgage registration. In accordance with the relevant legal provisions, other property subject to a mortgage, can volunteer to register the mortgaged property, the parties to the mortgage registration, may not be against the third person. Huang Xiaowei agreed with Beijing Hao mining companies signed the "security agreement", Beijing Hao mining company in Hainan province Baoting County unified revenue village molybdenum census prospecting enjoyed the 50% as the guarantee, is the mining rights as collateral to provide guarantee to the behavior of Huang Xiaowei. Therefore, Huang Xiaowei advocates the Jing Hao mineral companies bear the liability of guarantee requirements, the borrowing grounds, the court should be supported, but not against the mortgage registration third people. Beijing Hao mineral company puts forward prospecting marketable but itself does not generate income, so the guarantee behavior of failure, the defense is not established, the court shall not be accepted. Discussed and decided by the judicial committee in accordance with the hospital, "the people's Republic of China Contract Law" article 196th, article 211st paragraph second, the "PRC security law" article thirty-third, the provisions of article forty-third, the decision: A, Jing Hao group of Companies in ten days after the entry into force of this decision within the pay to borrow 5000000 yuan, Huang Xiaowei and interest 1694500 yuan, total 669.45 yuan.2010 in January 1st up to the time of performance judgment interest only 4 times, according to allow similar people's Bank of the loan rates Chinese. Two, Beijing Hao mining companies to enjoy the Hainan province Baoting County Xincun molybdenum census prospecting (certificate number changed to T46012090602030629) 50% of the proceeds, the Jing Hao group company to repay the loan principal and interest of Huang Xiaowei bear the guarantee responsibility. Three, Huang Xiaowei rejected the request of other proceedings. If not according to the specified judgment to the payment of money obligations, should be in accordance with the "Regulations of PRC Civil Procedure Law" article 229th, double payment of interest on debt during the delay in performance. The litigation fee 67275 yuan, litigation costs 5000 yuan, total 72275 yuan (Huang Xiaowei has been), by the Beijing Hao group company burden 61053 yuan, from the burden of 11222 yuan Huang Xiaowei.

Beijing Hao group company appeal said: first, the judgment that the repayment amount error. The trial court shall determine the only part of the money Kinghogroup company directly back to Huang Xiaowei, and to the Jing Hao group company Lin Guiquan legal representative and daughter Lin Xiaojing Jing Hao group repayment of part of the money not to recognize, is contrary to the facts and realities. Beijing Hao between collective and Huang Xiaowei in the case of the loan, repayment is complicated and special, the actual control of the company, Beijing Hao group company's original legal representative Lin Guiquan borrowing, and Jing Hao group company is the common behavior of borrowing, Lin Guiquan and daughter Lin Xiaojing to Huang Xiao Wai sum is actually Kinghogroup company back to Huang Xiaowei the money, Huang Xiaowei is unlikely to put money lent Lin Guiquan and her daughter, otherwise there is no guarantee. Huang Xiaowei did not put the borrower to Beijing Hao group company account, it will not transfer credentials shall provide the corresponding evidence. In addition, the court should have full repayment as interest, this is obviously wrong. Two, the trial court of interest calculation error. Beijing Hao group company with Huang Xiaowei in the "loan agreement" agreed monthly interest rate 2.5% is too high is invalid, it shall determine the interest calculation method. At the same time borrowing since has been the repayment, the amount of interest will be recalculated. In addition, view from Kinghogroup firm evidence, although Huang Xiaowei's receipt, receipt and payment of interest, that is, but not so simple that is the interest payment, but should be calculated for each stage of the interest according to the agreement and the provisions of the laws of both sides, the payment of interest shall be deemed to repay the principal. Three, the facts of this case has many doubts. Huang Xiaowei said Beijing Hao group of the 5000000 yuan, the evidence materials it provides only a loan agreement with Beijing Hao group company repayment plan book, any payment vouchers and its corresponding uncommitted. The money borrowing is how to pay? Is paid to the Beijing Hao group company or to pay Lin Guiquan for personal use? If it is paid to the Beijing Hao group company, then the corresponding payment documents submitted as evidence; if it is paid to the personal Lin Guiquan, then by Lin Guiquan to bear the responsibility, do not rule out the name of the company for personal loans by Lin Guiquan. This case to consider these special factors, Lin Guiquan and his daughter Lin Xiaojing to pay Huang Xiaowei's payment should be according to the case as Kinghogroup company paid Huang Xiaowei repayment. To sum up, the first instance court ascertained that the repayment of interest calculation error, mistake of fact, request the court of second instance shall ascertain the facts, to withdraw the first instance judgment, the judgment shall be amended according to the appellant, in order to safeguard the legitimate rights and interests of.

Huang Xiaowei said in reply: legal relationship between full and Huang Xiaowei belong to lending relationship between a, Jing Hao group and Huang Xiaowei's lending relationship with GUI different; Beijing Hao group companies without any evidence that Lin Guiquan paid to Huang Xiaowei on behalf of the loan interest is to pay interest on the loan back to Huang Xiaowei. Two, the civil subject in lending, does not guarantee the interests of creditors from losses, the lender may require the borrower to provide a corresponding guarantee; while for borrowers, guarantee is a contractual obligation, legal duties, there are a considerable part of the credit loan, the borrower is not required to provide any form of security, risk borrowers willing to assume the loan. So in this case, Beijing Hao group company that "Huang Xiaowei is unlikely to put money to lend Lin Guiquan, otherwise there is no guarantee" is not established. Moreover, between Lin Guiquan and Huang Xiaowei's borrowing is secured not belonging to the scope of the trial. Three, in Beijing Hao group company and Huang Xiaowei signed the "agreement", there is no clear agreement the borrower must use the "transfer" of the mode of payment. In this case, "loan agreement" there is no clear agreement can only use the "transfer" of the payment, therefore, between Beijing Hao group and Huang Xiaowei borrowing could use a, also can use a variety of, in addition to Jing Hao group of himself to Huang Xiaowei 5000000 yuan of money that is not dissent. Four, Beijing Hao group company to pay the amount in Huang Xiaowei Huang Xiaowei, issued to Kinghogroup company receipt clearly shows the borrowing interest, non loan principal. According to the "loan agreement" entry into force of the time, Beijing Hao group company shall, since the beginning of April 1, 2007, monthly to Huang Wei the payment of interest 106500 yuan (5000000 x 2.13%), except for the first month (2007 April) to pay the full amount, in other months are to cope with the interest amount. Therefore, Jing Hao group advocated "the excess of interest shall be deemed to repay the principal" had no basis in fact. Five, in Beijing Hao group company and Huang Xiaowei signed the "agreement", and there is no clear agreement borrowing, therefore, Beijing Hao group company is not illegal circumstances can be in accordance with the management state of the enterprise to dispose of the loan. Do it as the legal representative Jinghao group company of Lin Guiquan, on the basis of legal and business rights, in do not break the law case is free to borrow liaison v.. In sum, the court finds that the facts are clear, the applicable law is correct, the grounds of appeal Kinghogroup company without any factual, legal basis, request your court dismissed Beijing Hao group company's appeal, upheld the.

Beijing Hao mineral company for comment.

Beijing Hao group company, Huang Xiaowei, Jing Hao mining company in the second period did not submit new evidence.

The second finding of facts and the original judgment to ascertain the facts, but from April 29, 2007 to October 29, 2009, Huang Xiaowei received a total of Beijing Hao group company interest repayment 1830000 yuan. The other is found out, in June 15, 2007, a Chinese bank cheque issued by Beijing Marriott group, payable to Haikou Sheng Huang restaurant Co. Ltd., the amount of 125000 yuan, but the bill without the bank official confirmation. Then find out, May 11, 2009, May 15, 2009, July 7, 2009, August 24, 2009, September 18, 2009, Huang Xiaowei respectively to Lin Guiquan issued a receipt or receipt, the amount is 50000 yuan respectively, 150000 yuan, 500000 yuan, 500000 yuan, 300000 yuan. In October 29, 2009, Lin Xiaojing Dai Lin GUI omnidirectional Huang Xiaowei repayment 150000 yuan.

This house believes that: Huang Xiaowei and Beijing Marriott group in April 1, 2007 signed the "agreement", is the true meaning of the parties, except the agreed interest rate of 2.5% is too high is invalid, the relevant provisions of other content does not violate the law, a valid agreement. The agreement: Beijing Hao group company to Huang Xiaowei to borrow 5000000 yuan. The loan fact Kinghogroup company legal representative Lin Guiquan testimony, Beijing Hao group company issued "repayment plan", Huang Xiaowei and Jing Hao mining companies signed the "security agreement", Jing Hao group company Huang Xiaowei to pay loan interest vouchers to give evidence, the court for confirmation. Beijing Hao group called the renminbi appeal to Huang Xiaowei to borrow 5000000 yuan no evidence reason not established, the court shall not support. Huang Xiaowei and Jing Hao companies signed the "agreement", Beijing Marriott group company repaid part of the loan interest, Beijing Hao group company to submit payment certificate shall be recognized and Huang Xiaowei repayment amount is 1830000 yuan. Regarding the submission Kinghogroup company of Lin Guiquan, Lin Xiaojing Lin Guiquan's personal payment receipt, the receipt is the Department of Huang Xiaowei to Lin Guiquan's receipt, Jing Hao group company failed to submit evidence of payment behavior Lin Guiquan legal representative of the Department of post behavior as the original Kinghogroup company man, and Huang Xiaowei believes the repayment behavior is individual behavior of Lin Guiquan instead of duty behavior, so Huang Xiaowei to Lin Guiquan personal receipt can only prove that between Huang Xiaowei and Lin Guiquan's personal lending relationship, can not be identified as Lin Guiquan generation of Jing Hao group company to repay Huang Xiaowei, Beijing Marriott group, says Lin Guiquan and his daughter Lin Xiaojing appeals to Huang Xiaowei the sum is actually not Kinghogroup company back to Huang Xiaowei payment reason, not far not supported. Huang Xiaowei and Jing Hao group agreed repayment interest monthly interest rates of 2.5%, according to the Supreme People's court "about people's court lending case several opinions" provisions, more than similar loan interest rate 4 times over the same period the bank interest is not protected, so both parties agreed repayment interest shall be according to the same bank lending rates over the same period 5.325% four times (2.13%) to calculate, Beijing Hao group company shall pay interest to Huang Xiaowei (as of December 31, 2009) to 3514500 yuan ($5000000 x 2.13% x 33 months =351.45 million). The Jing Hao group of companies only to Huang Xiaowei paid 1830000 yuan, and Huang Xiaowei on the receipt shall be charged interest on borrowings are. The company said its Kinghogroup appeal beyond the agreement to pay the interest on the loan should be set up to repay the principal reason not, the court shall not support. Beijing Hao group company shall pay interest to Huang Xiaowei (as of December 31, 2009) 3514500 yuan, Beijing Hao group company has Huang Xiaowei to pay loan interest 1830000 yuan, still owed the loan interest 1684500 yuan. To sum up, the decision to apply the law correctly, the facts are basically clear, but the Kinghogroup companies have to pay interest on the loan amount calculation error of Huang Xiaowei, which should be corrected. In accordance with the "PRC Civil Procedure Law" article 153rd (a), article (three) the provisions of item, the decision as follows:

One, to maintain the Haikou City Xiuying District People's Court (2010) show people the double word second civil judgment of second, third, namely Nanjing sea Hao mineral resources development company limited to enjoy the Hainan County of Baoting province Xin Cun Mo census prospecting (certificate number changed to: T4612090602030629) 50% of the proceeds, the Hainan Jing Hao the Refco Group Ltd to repay the loan principal Huang Xiaowei undertake suretyship liability; Huang Xiaowei rejected the other's claim;

Two, change Haikou City Xiuying District People's Court (2010) show people double No. second civil decision second: Hainan Jing Hao Refco Group Ltd in ten days after the entry into force of this decision, to repay Huang Xiaowei to borrow 5000000 yuan and 1684500 yuan of interest, a total of 6684500 yuan. January 1, 2010 to the judgment until the time the interest, to pay 4 times the same people's Bank of the loan rates Chinese.

Three, if not according to the period specified in the judgment to the payment of money obligations, should be in accordance with the "Regulations of PRC Civil Procedure Law" article 229th, double payment of interest on debt during the delay in performance.

A trial in the case of the 67275 yuan of case acceptance fee, litigation costs 5000 yuan, the second instance court costs 63002 yuan, total 135277 yuan, by Hainan Jing Hao Refco Group Ltd burden 114977 yuan, from the burden of 20300 yuan Huang Xiaowei.

This judgment is the final judgment.

                        The trialSentencedLong  Huang Yuchen

                        Acting judge  ZhangLei 

                        Acting judge  Wang Chunfang

                       Two O one one years in June 24th

                       The book NoteMember  Week Juan