Source: Baotou lawyer

ZG (2013) No. 37

The Zhejiang Provincial Higher People's Court on the

Issued "On the financial services reform properly

Several opinions heard folk loan disputes"Notice

The people's courts at all levels, the maritime court, the Ningbo Hangzhou railway transportation court:

As the financial services reform, guide folk financing sunshine and standardization, properly court folk lending dispute cases in our hospital, formulated the "several opinions" on financial services reform according to proper court folk lending dispute cases, are hereby printed and distributed to you, please conscientiously implement. Implementation problems please report to my courtyard two people court.

The Zhejiang Provincial Higher People's court

February 20, 2013

The Zhejiang Provincial Higher People's court

On the financial services reform in accordance with the law

Several opinions properly hear folk loan disputes

In recent years, the folk financing market in our province, active, folk loan disputes is increasing. In September 8, 2009, the Provincial Higher People's Court issued "guidance" on Several Issues concerning the trial of folk loan disputes, unified the basic ideas of case trial. At present, the pace of financial reform of our province to speed up the approval in March 28th of this year, since the State Council establishes the Wenzhou financial comprehensive reform pilot area, puts forward the new request to the folk loan disputes trial. For the overall reform of financial service of our province, implement the Supreme People's court "notice" on properly trial folk loan disputes and promote economic development and maintain the social stability and the "about people's court to prevent and resolve financial risks and provide guidance" judicial safeguard to promote financial reform and development of folk financing market, combined with the practical in our province, according to the law the proper court folk lending dispute cases, put forward the following opinions:

1 in the financial reform context actively planning borrowing trial work. Adhere to the "judicial activism, serving the overall situation", strengthen the trial functions, promote folk financing sunshine and standardization. We should exert the function of judicial adjudication guidelines, to guide more private capital to the entity economy, promoting Zhejiang private finance and private economic integration, healthy development. In accordance with the law to support local government reform initiatives of the folk financing sunshine and specification, usury and speculative tendency contain folk financing, to guard against the financial risk. In accordance with the law to punish fraud, illegal absorbing public deposits and other crimes, safeguarding national financial order and social harmony and stability. In order to implement the principle of good faith, the false action to prevent and restrict the folk loan disputes. Pay attention to the protection of the legitimate rights and interests of parties, private lending and illegal fund-raising and other criminal activities and maintain the legitimate rights and interests of enterprises and workers to the livelihood of the balance of interests, not only to prevent judicial misconduct by the impact of production and operation activities, and guide rational debtor enterprises through bankruptcy proceedings in accordance with the law to protect their legitimate rights and interests, in the enterprise bankruptcy procedure justice led in a fair settlement includes borrowing debts, debts, enterprises realize the regeneration through bankruptcy reorganization or reconciliation procedure.

2 to properly distinguish life consumption folk loan disputes and enterprise business folk loan disputes, the correct application of the law and judicial policy. Trial of life consumption folk loan disputes, should be more emphasis on "giving priority to mediation, the principle of combination of transfer negotiations work", pay attention to the role of intermediary organizations, the role of trade associations, to strengthen the docking litigation and conciliation, improve the diversification of the dispute settlement mechanism. The trial of enterprises related business folk loan disputes (including business lending disputes), to fully consider the dispute's background, the local folk financing market trading habits, attention to commercial property transactions, to strengthen the credit review, correctly handle the relationship between law and policy, a demarcation line between folk loan disputes and illegal fund-raising activities, properly resolve contradictions and disputes.

The trial of enterprises related business folk loan disputes over the same period, agreed to pay more than lend interest borrowing behavior occurs under the people's Bank of China published borrowers for loans of the same grade benchmark interest rate four times, lenders demand exceeds the allowance of principal, the people's court according to the circumstances to give support.

The collaborative disposal mechanism leading 3 docking government departments, private financing, and work together to resolve suspected of illegal fund-raising and other criminal activities Sheqi folk loan disputes. The people's court shall cooperate with Party and government leading financing cooperative disposal mechanism to resolve civil lending risks, solve the related activities of folk loan disputes, in accordance with the law to offer advice and suggestions, to promote the disposal of legal compliance. Coordination of the work to strengthen cooperation with the disposal mechanism, the coordination related folk financing behavior disposal mechanism to identify the suspected economic crimes, the people's court shall not accept the folk loan disputes, the collaborative disposal mechanism coordinated advance on suspicion of economic crimes conduct; by the association in the mechanism of screening does not belong to the illegal fund-raising crime folk financing disputes the people's court shall accept the case according to law. Trial found that private financing behavior suspected of illegal fund-raising and other crimes, or one of the parties claim alleged crimes and request for transfer, according to the provisions of the relevant judicial interpretations and "the Zhejiang Provincial Higher People's court" guiding opinions on Several Issues concerning the trial of folk loan disputes thirty-seventh, specific case distinction case, respectively, to take the whole case and reject, continue the trial proceedings, such as processing.

4 shall accept the bankruptcy application, related problems through the folk lending dispute coordination bankruptcy platform and illegal fund-raising activities, interleaving. Enterprise bankruptcy reason, enterprise and related personnel suspected of illegal fund-raising and other criminal activities, after consulting the collaborative disposal mechanism and the views of the relevant departments, in accordance with the "enterprise bankruptcy law" and "Regulations of the Supreme People's Court on certain issues concerning the application of people's Republic of China Enterprise Bankruptcy Law > (a)" provisions, the people's court shall on the acceptance of the bankruptcy petition.

Acceptance of the bankruptcy application, should be in accordance with the law and relevant judicial policy requirements, to properly handle relevant issues of folk loan disputes and illegal fund-raising activities, the relevant functional departments on suspicion of illegal fund-raising and other criminal activities to investigate, and then go through bankruptcy platform, focus on the folk loan disputes, private lending debt equity. Folk loan disputes and suspected of illegal fund-raising and other criminal activities can be processed separately, in the premise of good coordination work, according to "the enterprise bankruptcy law" the focus on private lending disputes and investigate suspected illegal fund-raising activities.

Accept the bankruptcy application, shall be investigated for criminal responsibility to the debtor property preservation measures and implementation procedures, in accordance with the law to rescind, termination of execution.

5 to confirm the fact proved to related lending force folk financing registration materials. To protect the financial reform in the folk loan registration service center to carry out registration, notary, settlement, legal consulting activities. Both lenders and borrowers for the loan contract, remittance documents, lending registration application form and other materials registered with the registration service center, is an important evidence of both lenders and borrowers borrowing agreement and the actual lending relationship, to contain the above materials in the main lending, loan period, interest rate, liability for breach of contract and other facts, the general should be confirmed.

In accordance with the law to support the establishment of the folk financing monitoring system in financial reform, and can be formed by the system of civil financing comprehensive interest rate index, as judged by the local folk loan disputes interest payment reference factors of rationality.

6 and that of conjugal debt. According to the "marriage law of the people's Republic of China" and its judicial interpretation that common debts between husband and wife, prevent couples got divorced and other forms of malicious evasion should share the burden of the debt. At the same time, but also to prevent inappropriate that common debts between husband and wife.

7 strengthen the loan subject to review, in accordance with the law in order to prevent false litigation. To strengthen the financing Guarantee Corporation, consulting company, investment companies in the name of a person engaged in private lending legitimacy review. Strict regulation of civil servants in usury lending behavior, and resolutely punish by borrowing the name, illegal dishonest behaviors using public power to amass money. The occupation lenders participating folk debit and credit, strictly review the evidence potency, comprehensive payment proof of delivery, payment ability, the local trading habits, the statements of the parties transactions through such judgment lending facts. Should pay attention to the prevention of fraud litigation, sanctions, on the existence of no substantive plea confrontation between the original defendant, but relates to the interests of the third cases, not only with the original defendant confession to determine the facts of the case, still should be strict, careful examination of the fact whether the actual loan. The couple divorced during the name of one foreign issued IOU, IOU, authenticity should strictly examine the debt, prevent the fictitious debt, improper share of the property. There is a false action is suspected, to timely according to the authority or to the relevant departments to investigate and collect evidence, find out the facts of the case.

Processing entity 8 carefully grasp the penal and civil folk lending case. Folk loan disputes and suspected of illegal fund-raising crime can be processed separately, effective criminal judgment that borrowing facts, facts on a pending folk loan disputes have binding force. Civil judgment, mediation effect, borrowing the parties and relevant personnel behavior is functional organs investigated on suspicion of illegal fund-raising and other crimes (including the people's court to make effective judgments, not easily accept) on the effective civil retrial application and filed trial supervision procedure to confirm the validity of the contract effective borrowing against civil cases. To have been filed to guarantee the civil liability of the application for retrial and applicable procedure for trial supervision cases, to distinguish the criminal defendant I secured with third people guarantee, the guarantee contract is invalid for the case, in consideration of the debtor, guarantor, creditors on the basis of their fault, according to the "security law" article fifth ", the Supreme People's Court on certain issues concerning the application of people's Republic of China Security Law > interpretation" in article eighth, determine the guarantor shall bear the responsibility.

9 to strengthen the judicial suggestions and judicial publicity work. To give full play to the role of risk early warning of judicial suggestions to resolve social conflicts and promote the role, pay attention to, in the trial work of analyzing all kinds of market subjects especially the potential risk of folk capital operation mechanism of a financing Guarantee Corporation, pawn shops, small loan companies, according to financial institutions and supervision departments issued judicial suggestions, help the central holes, prevention risk. Through the held a news conference, announced the typical case, published research reports and trial business documents and so on many kinds of ways, strengthen the judicial publicity, actively expand the social effects of the cases, suggesting that credit risk to the enterprise and the social public, the financing subject consciously fulfill legal obligations.

10 optimal borrowing trial mechanism. To grasp the relevant enterprises debt situation, through the establishment of relevant enterprises information report, case acceptance ledger system, ensure the smooth flow of information within the court. The hot, difficult problems found to hear civil cases in borrowing, should be targeted for special research, and constantly enhance the work of the prospective and research capabilities. Docking and communication with the public security, industry and commerce, banking, financial and other related departments to actively participate in the credit system, risk prevention system construction financial. Extending the judicial service, social credit system and information sharing mechanisms involved in construction, to maintain social and economic stability of the financial order.

CC: the Supreme People's court office, civil court, two people court

     The provincial government financial office, the banking regulatory bureau, Zhejiang province banking association

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The Zhejiang Provincial Higher People's court office                     Issued in February 20, 2013