Suzhou lawyer Zhou Zhongsheng Tel: 189 6210 4280 QQ:80 4941115

[] borrowing meaning borrowing in narrow sense only means the natural person credit relations between broad sense, folk lending includes lending between natural persons, including between natural person and non-financial corporate borrowing. Private lending legal sense refers to folk lending in general.

[private lending is effective] between natural persons, legal effect all the more clear borrowing, lending legal purpose principle will be deemed to be valid. On the folk lending between natural and non financial enterprises effective? The Supreme People's court in 1999 "about how to confirm the citizens and enterprises between the borrowing behavior potency question reply" has been described.
Method to release [1999]3 (the Supreme People's Court on January 26, 1999 the 1041st meeting of the judicial committee, shall enter into force as of February 13, 1999.)
The Heilongjiang Provincial Higher People's court:
Your school black (1998) high Law No. 192 "instructions" between the citizen and business lending contract to confirm receipt. Through research, the following reply:
Citizens and non financial enterprises (hereinafter referred to as enterprises) loan between belongs to the folk lending. As long as the parties expressed their true meaning can be identified effectively. However, any of the following circumstances, it shall be deemed as invalid:
(a) enterprises to borrowing name to the illegal fund-raising;
(two) the enterprise to borrow the name of illegal to social capital;
　　　(three) business loans to the public the name of loans;
(four) other acts in violation of any law, administrative regulations.
Lending rates than similar bank lending rates 4 times over the same period, according to the Supreme People's Court (min) the relevant provisions of hair (1991) No. 21 "about people's court lending case several opinions" management.
  Enterprises to the public the illegal deposits, loans will be illegal, enterprises to workers is considered illegal, but the staff to corporate borrowers are not on the list.

    Along with the financial reform, the lawyers believe that the laws will be adjusted.

[interest] between natural persons borrowing is not agreed interest, whether can claim the interest? Not in favor of the repayment period, repayment of overdue can claim overdue interest. If the contract interest rate not higher than bank lending rates four times the same period.

[] agreed repayment period according to the agreement, no agreement at any time have the right to demand that the debtor creditor repayment.

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　　196th a loan contract is the borrower to the lender, due to repay the loan and interest payment of
The same.
197th loan contracts shall be in written form, but the loan is between natural persons who have agreed otherwise.
A contract for loan of money includes loan type, currency, purpose, amount, interest rate, term and method of repayment terms.
Article 198th a contract for loan of money, the lender may require the borrower to provide a guaranty. In accordance with the provisions of the guarantee "Guaranty Law of the people's Republic".(a guarantee that creditor's rights realize more secure)
Article 199th a loan contract, the borrower shall provide true information as required by the lender and borrower related business activities and financial conditions. (The debt credit review)
200th interest on a loan may not be deducted from the principal in advance. The interest deducted from the principal in advance, in accordance with the actual amount borrowed and calculation of interest.(the principal is the principal, interest is the interest, be quite distinct from each other)
Article 201st the lender fails to provide the loan in accordance with the agreed date, amount, thereby causing loss to the borrower, it shall pay compensation for the losses.
The borrower fails to accept the loan in accordance with the agreed date and amount, it shall pay the interest according to the agreed date, the amount.
Article 202nd the lender can check, supervise the use of the loan in accordance with the contract. The borrower shall periodically provide the lender with relevant financial statements and other materials in accordance with the contract. (the creditor is conducive to the realization of the unsafe right of defense against the debtor supervision)
203rd the borrower fails to use the prescribed purpose, the lender may stop providing the loan, call the loan, or terminate the contract.
Article 204th financial institutions loan business loan interest rates, should be in accordance with the provisions of the people's Bank of China upper limit and lower limit of loan interest rates to determine.
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, article sixty-first in accordance with the provisions of this law 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 period of less than one year, shall be returned borrowing with payment.
206th the borrower shall repay the loan at the agreed time. If the time limit is not agreed or the agreement is not clear, nor can it be determined in accordance with the provisions of this Law in article sixty-first, the borrower can repay at any time; the lender may urge the borrower to return within a reasonable period of time. (for non-compliance deadline to fulfill the debt at any time. )
207th the borrower fails to repay the loan in accordance with the agreed time limit, shall be in accordance with the contract or the relevant provisions of the state pay overdue interest. (There is no agreement interest may not advocate interest, but neither can also advocate interest)
Article 208th the early repayment of loans, except as otherwise agreed by the parties, the interest shall be calculated based on the actual period of loan.
209th the borrower may apply to the lender for extension of the loan term before. With the consent of the lender, the loan term may be extended.
Between the 210th nature of the loan contract, the lender makes the loan effect.
Between 211st natural person the loan was not prescribed or clearly prescribed, as non payment of interest. (No contract interest may not advocate interest)
The payment of interest agreed a loan contract between natural persons, the loan interest rate shall not violate the provisions of relevant state limit on loan interest rate. (prohibited usury)

The Jiangsu Provincial Higher People's Court judicial committee meeting minutes
Soviet Supreme Court Judicial Committee No. [2009]45
The Jiangsu Provincial Higher People's Court on


"Notice some problems about the current macroeconomic situation properly trying cases of disputes over contracts for non financial institutions lending opinion"
The various departments of the Municipal Intermediate People's court, the basic people's court, the court:

New situations and new problems in order to actively cope with the current macroeconomic situation, non bank financial institutions loan contract disputes, thoroughly implement the "Supreme People's Court on to safeguard national financial security and economic sustainable development to provide judicial safeguard and legal services of a number of opinions" and "the Jiangsu Provincial Higher People's court on the growth, people's livelihood, maintaining stability and judicial measures" provisions of the spirit, function better play to the people's court to serve the economic development and social stability, promoting economic development, safeguarding the financial security and social stability, the judicial committee of our hospital in August 21, 2009 twentieth plenary meeting to discuss the adoption of the "issues of Jiangsu Province Higher People's Court on the current macroeconomic situation to properly handle disputes Contract non bank financial institutions lending opinion", which are hereby issued, for the people's courts at all levels to carry out. If any problem in the implementation, please timely report to our hospital.
Two hundred nine years in December 4th

Some problems of Jiangsu Provincial Higher People's Court on the current macroeconomic situation properly trying cases of disputes over contracts for non financial institutions lending
(the Jiangsu Provincial Higher People's court trial committee in August 21, 2009 twentieth plenary meeting of the [09])
To further implement the "Supreme People's Court on to safeguard national financial security and economic sustainable development to provide judicial safeguard and legal services of a number of opinions" and "the Jiangsu Provincial Higher People's Court on the growth, people's livelihood, security and stability of the judicial measures" provisions of the spirit, function better play to the people's court service economy development and social stability, promoting economic development, safeguarding the financial security and social stability, some problems of Jiangsu Provincial Higher People's Court of the judicial committee of the current macroeconomic situation properly trying cases of disputes over contracts for non financial institutions lending are discussed, put forward the following opinions:
One, the current situation of trial of cases of disputes over loan contract principle
1, the protection of the legitimate lending behavior, smooth financing channels. The people's court in the trial of cases of disputes over loan contract, should give full play to the role of trial function, protect the legitimate private lending and financing behavior of enterprises, to support the financial innovation, safeguard the legitimate rights and interests of creditors, to broaden the financing channels for small and medium enterprises.
2, to crack down on illegal lending behavior, safeguarding the financial security and social stability. The people's court in the trial of cases of disputes over loan contract, should actively carry out the maintenance of financial security and social stability of judicial duties, pay attention to illegal financial activities in various legal forms of screening cover, to prevent a few companies or individuals to use the funds for small and medium enterprises machine will avoid financial supervision, to seek illegal interests, safeguard social stability.
Two, folk lending dispute
3, the term borrowing borrowing behavior between a natural person and natural person, natural person and non financial enterprises.
Invalid in 4, the private lending behavior:
(1) to "act form not specific to the majority of illegal fund-raising will be marked" etc.;
(2) loans to others lend money profit for the industry "underground banks" in;
(3) borrowing other violations of laws, administrative regulations of the mandatory provisions.
Private borrowing suspected fraud, illegal criminal acts such as the establishment of financial institutions, in accordance with the "illegal financial business activities and illegal financial institutions banned methods", "Office of the State Council on the legal punishment of illegal fund-raising related issues notice" provisions of the.
5 the following, non lending financial enterprises to develop effective:
(1) in accordance with the conditions and procedures as prescribed by law to raise funds;
(2) for the production and operation of enterprises need temporary small loan to the specific natural person;
(3) the enterprise non to obtain high interest for the purpose, small loan temporary to the natural person.
6, the loan contract both parties interest and liquidated damages, the people's court is adjusted according to the "contract law" regulation of the people's Republic of China after 114th of liquidated damages and interest according to the bank and shall not exceed the similar loans benchmark interest rate four times computation of interest.
7, although the agreed loan contract shall pay the interest, but interest standard is not agreed or the agreement is not clear, the calculation of interest on bank loans benchmark interest rates during the same period. Only stipulate the borrowing period interest without agreement overdue interest, such as interest loan agreement is less than or equal to the corresponding bank overdue interest calculated according to the standard, the lender claims, can calculate the overdue interest according to the bank overdue interest standard; if the agreed loan interest is higher than the same period the bank overdue interest calculation standard, and no more than banks in the same period similar loans benchmark interest rate four times, in accordance with the agreed loan interest calculation standard of overdue interest.
8, the lender and the borrower agreed loan interest calculation standards more than banks in the same period of similar loans benchmark interest rate four times "usury" behavior, the part in excess of the interest of the people's court shall not protect.
The borrower's repayment contains more than by bank loans benchmark interest rate four times during the same period calculation of interest, according to the borrower's claims, the exceeding part can offset the principal.
9, loan contract agreed repayment, the repayment of interest or principal is clearly in the repayment, repayment should be according to the meaning that; in repayment is not clear, should offset the interest, then to principal.
Three, approved by the development of non-financial corporate lending business cases involved borrowing contract dispute case
10, to set up pawning enterprise according to "hock management measures" signed by the real estate, property rights, property to the debtor lend pledge, mortgage mortgage contract, loan contract nature shall be determined as.
11, the pawn business loan is not to set mortgage or pledge, which belongs to the violation of "hock management measures" on pawning enterprise "shall not be illegal financial activities engaged in credit loans loan contract" provisions, shall be deemed as invalid, the borrower shall return the loan capital and fruits, fruits are calculated according to the banks in the same period the same benchmark lending rate. But because of the registration of mortgage institution fails to apply for registration, city construction planning and other non adjustment due to the fault causes except pawning enterprise failure to obtain the right to mortgage, pledge.
The borrower only to hock enterprises to provide guarantee, loan contract and guarantee contract shall be invalid.
12, the interest should be protected as agreed in the contract that the pawn pawn business and comprehensive fee,, but more than "hock management measures" provisions except. Pawn business ideas the loan after the expiry of the interest and fees, for two of the total amount exceed the bank loan datum interest rate four times during the same period calculation of interest on the part of protection is not. Pawning enterprise advocate the contract default payment, the borrower requests to adjust the default payment, the people's court shall, according to relevant laws and judicial interpretation.
13, the non financial enterprises approved in accordance with the law to carry out business of lending small loan companies, rural mutual fund with a certain financial nature signed within the approved scope of loan contract shall be deemed valid. Dealing with the resulting dispute according to relevant laws and regulations, there is no corresponding provisions, referring to the folk loan disputes about the legal, judicial interpretation of the provisions of treatment.
Loan contract dispute case four, between enterprises
14, enterprises will be its own funds to other enterprises to help them solve the production and operation of the funds needed, if calculated in accordance with the banks in the same period the same benchmark lending rate.
15, the enterprise will obtain from the financial institutions and credit funds to other enterprises and there are other violations of state financial regulatory laws and regulations behavior, the people's court shall in accordance with the Supreme People's Court (through) the relevant provisions of the [1990]27 number "on Several Issues concerning the trial of joint venture contract dispute case to answer" fourth second treatment.
Signed 16, engaged in lending activities without approval of investment companies, Guarantee Corporation and other non financial enterprises of the loan contract, the people's court shall be in accordance with the Supreme People's Court (through) the relevant provisions of the [1990]27 number "on Several Issues concerning the trial of joint venture contract dispute case to answer" fourth second treatment.
Between the 17, between the enterprise or its associated companies signed contracts of sale, "the buyer agreed" to the "seller" delivery "payment", the contract expires after the "seller" to "buyer" share the same subject matter, the two sides without express delivery and accept the object and the meaning of behavior, should be as borrowing between enterprises and that the contract is null and void, depending on the specific circumstances in accordance with the provisions of Article 15. Fourteenth, treatment.
Five, the loan contract dispute case evidence
18, the people's court to review the authenticity of a principal amount should be comprehensively all the evidence and fact analysis and judgment. Mainly include: whether a record amount of the loan with interest approach is generally used to private lending market local; creditors can explain specific borrowing occurs; statements contradictions; whether creditors had a similar deal precedent; whether the court debate caused by the words of creditor statements such as reasonable doubt.
19, lenders assert a claim to a borrower, loan amount stated anti argued that a contains only interest or interest, and to provide evidence to judge the ious as the principal amount reasonably doubt, can be determined by the lender is a principal amount of the authenticity of the burden of proof.
Six, loan contract disputes suspected criminal cases
20, the loan contract dispute cases, one or both of the parties to the case suspected fraud or illegal absorption of public funds crime as a plea, the people's court review of that defense shortage or lack of evidence, and the parties to the defense argued, report to the investigation organ shall notify the parties concerned; the investigation organ for acceptance the people's court shall rule to reject, civil prosecution of the case and to transfer the case to the investigation organ; the investigation organ shall not be placed on file for investigation, loan contract to hear the dispute case.
21, the people's court in the case of the trial found that cases of suspected fraud or illegal absorption of public funds crime, should be transferred the case to the investigation organ. The investigation organ for investigation, the court rejected the prosecution should be civil cases; the investigation organ shall not be placed on file for investigation, loan contract to hear the dispute case.
22, loan contract dispute cases concluded after a suspected crime and public security organs have been placed on file for investigation, the enforcement shall be suspended, waiting for the criminal cases investigation results and the booty. Include illegal interest should not protect the effective judgment, shall be in accordance with the procedure for trial supervision corrected.
23, the trial of enterprise bankruptcy cases, discovers that the bankrupt enterprise behavior in illegal fund-raising, on suspicion of illegal fund-raising part shall be transferred to the relevant authorities. Illegal fund-raising amount of relevant organs of the final determination, should according to "Regulations of illegal financial institutions and illegal financial activities banned methods" and the judicial interpretation, in the entry stage distribution of the bankruptcy property is included in the third order liquidation.
Seven, annex
24, the opinions issued since the date of implementation. The provisions of this hospital previously made with these opinions are in conflict, these opinions shall prevail. In the process of implementing the new laws, regulations, judicial interpretations are inconsistent with this opinion, shall be implemented in accordance with the law, regulations, judicial interpretation.

Key words: loan contract
CC: General Office of the provincial Party committee, politics and Law Committee, the provincial people's Congress Standing Committee, the Legal Committee Office, office, office of province government provincial Procuratorate, Department of justice;
The Supreme People's court office, laboratory, audit committee office, two people court of Jiangsu Province Higher People's court office
Issued in December 4, 2009

  In order to correctly judge folk loan disputes, unification of criteria of judgment, equal protection of the legitimate rights and interests of both lending, maintain the order of the market economy, according to the provisions of the relevant laws, administrative regulations and judicial interpretation, combined with the actual city, the trial of folk loan disputes in, put forward the following opinions:

1, hearing the folk loan disputes, in accordance with the law shall protect the legitimate lending, sanctions and avoiding financial supervision, in the form of legal cover up illegal act, security financing channels, to promote the credit market to form multiple structure, give full play to the judicial functions to guide and regulate the role of borrowing behavior, guide the market subject law abiding integrity.

2, between the natural person and non-financial enterprise or natural person between loan disputes, should be regarded as folk loan disputes the admissibility of the provisions, and shall apply the guidelines. Approved by the financial departments of local government and other departments in the loan, guarantee, corporate institutions, financing lease, pawn, funds and other financial business loans caused by the dispute, does not apply to this guidance.

Because of illegal fund-raising and other reasons by the banking supervision and management departments identified as illegal financial business activities of lending disputes, the people's court shall rule to reject, but for illegal financial institutions illegal absorption or disguised absorbing public deposits, illegal fund-raising was banned, because return disputes, no consensus to the people's court shall be accepted.

The public security organ for investigation of folk loan disputes, the people's court shall rule to reject.

3, under normal circumstances, folk loan disputes of the parties to the loan contract specified in the contract as the plaintiff and the defendant. Have not signed a written contract for loan of money, the lender, the borrower to other debt instruments such as the plaintiff and the defendant, except as otherwise provided for by this opinion.

4, for the common are two or more creditors to loan disputes, only one or some lenders filed a lawsuit, the people's court shall notify the other lenders to participate in the litigation, but clear up except for other lenders to borrowers claim rights. Give up other lenders to borrowers prior claims filed a lawsuit, the people's court shall not accept the case; has to accept, reject.

The debtor is more than two of lending disputes, lenders are part of the prosecution, the people's court shall add other borrowers as a joint defendant.

5, the legal representative of the enterprise, signed in the name of individual loan contract, the people's court shall personal parties; enterprise legal representative signed in the name of the enterprise of the loan contract, the people's court shall list of enterprises for the party.

6, one of the spouses signed the loan contract, lenders to the couple as a defendant in a lawsuit, the people's court shall permit.

7, the plaintiff only on the basis of a lawsuit, the defendant argued that a signature or seal on the false, in the original, the defendant shall not apply for identification in case, assume that the application identified by the plaintiff's responsibility. The defendant shall provide for identification, handwriting or seal on the sample, refuses to provide, the people's court may direct that I owe you on the signature or seal is true.

8, for the subject of the case, the lender shall prove of payment. The lender stating payment for cash on delivery, the people's court shall according to the statements of the parties, the cash delivery amount, loan affordability, trading habits determine the comprehensive review factors.

9, the lender based only on financial institutions payment vouchers filed a lawsuit, arguing that money Lender Borrower repayment system both previous loans and IOU have already lost, the burden of proof borrowing relationship established by the lender bear.