On hearing the folk loan disputes

Guidance problems

(ZG (2009) No. 297    September 8, 2009.

 

Fair trial, specification of folk loan disputes, unification of criteria of judgment, equal protection of the legitimate rights and interests of creditors, the debtor, maintain the market economic order in accordance with the law, according to the provisions of the relevant laws and regulations and judicial interpretations, combine me the province is actual, the purpose of this guidance.

A, accepting and jurisdiction

Article 1The following disputes between natural persons, legal person between the natural person and non financial institutions or other organizations, should be regarded as folk loan disputes accepted:

(a) money lending disputes;

(two) treasury bills and bearer securities lending disputes.

Article second Between the parties for the for sale, contract, equity transfer, other legal relations of debt, the debtor after the settlement, in written form on a debt confirmation, creditors and the debtor in litigation, or the guarantor on the validity of the basic legal relationship and perform it raises a defense and there is evidence to prove that the dispute due to other legal relationship to cause, in accordance with the principles of the basic legal relationship trial, but I still can be used as an important evidence of the underlying contract.

Article thirdGeneral principles of folk loan disputes over contract disputes, the defendant has his domicile or the contract to the jurisdiction of the court.

According to the Supreme People's court "about how to determine the approved loan contract problems" (compound [1993]10), the lender domicile to perform its obligations under a contract, the parties to the contract except as otherwise agreed.

Both lenders and borrowers to jurisdiction not in violation of the provisions in Civil Procedure Law on jurisdiction under the agreement, the agreement.

The defendant One's whereabouts is a mystery., governed by the original domicile of the defendant or the property where the court.

The relevant enterprises involved in a number of folk loan disputes, the notice in line with the centralized jurisdiction issues about corporate debt capital chain rupture caused major cases in the school of "" (ZG [2008]289) provisions related to the people's court may, according to the notice of the application of concentrated jurisdiction.

Two, the subject of litigation

Article fourthThe presumption of IOUS and other debt obligations to creditors holding, has the qualification of plaintiff.

The defendant appealed against the plaintiff's subject qualification, and to provide evidence that the creditor's rights certificate holder is not the creditor or assignee, can reject.

Article fifthThe presumption of a borrower signed for the debtor, the subject qualification.

The plaintiff should have in the prosecution definite defendant, the defendant is not clear, will not be accepted, has been accepted, it shall reject it.

In the case of the trial, found the behavior person fiction the borrower or to legal person or other organization has been cancelled in the name of the defendant is not suitable lending situation, the court shall inform the plaintiff to alter the defendant, the plaintiff refuses to change or not to change, can reject. If the defendant is found out by name, false and has no fault, the court shall reject the claims.

 

Article SixthCommon claims more than two lenders, is only a part of the borrower or lender litigation, court shall add other loan as co plaintiffs, but expressly waived except other lenders to borrowers to claim rights. Give up other lenders to borrowers prior claims lawsuit, is inadmissible, have to accept, reject.

 

Article seventhIn the joint liability guarantee, the borrower or lender only prosecute only prosecute the guarantor, the court did not take the initiative to append the guarantor or the borrower as a joint defendant. The guarantor that borrowers to participate in the proceedings, the judicial interpretation, the lender will not apply for additional borrowers for the co defendant, the court can only guarantee the litigation to trial.

Article eighthIn one of the spouses name to others to borrow, litigation matrimonial relationship still exists, the creditor will not mate as a co defendant, the court should not notify the borrower's spouse to participate in litigation, unless the spouse to claim in litigation or suspected cases of false litigation.

Borrowing behavior occurs during the marital relationship lenders or borrowers, litigation when one party has divorced, the plaintiff or defendant can apply for additional its original spouse as a joint defendant.

Three, the establishment of effective, effective

Article ninth Both lenders and borrowers by signed loan contract, issue IOU, IOU, sending mobile phone short message, e-mail etc. in written, oral or other ways to reach a loan agreement, loan contract.

Article tenth  Folk loan contract established according to law, since the actual delivery of the borrower or borrower payment specified by recipient, in effect at the time of.

Article eleventhBorrowing the validity of the contract in accordance with the interpretation of contract law fifty-second and the Supreme People's court "on certain issues concerning the application of people's Republic of China Contract Law > (two)" (France - [2009]5) provisions of article fourteenth of the identified.

Between natural person and non-financial corporate borrowing, firms will borrow for legitimate production and operating activities, does not constitute fraud, illegal absorbing public deposits and other financial crimes, not that the loan contract invalid.

Article twelfthFolk loan is invalid, the borrower shall return the lenders to the loan principal. No fault lenders require the borrower to compensation funds occupancy during the loss, the court may refer to the people's Bank of Chinese announced the same grade benchmark interest rate loans to support.

Article thirteenthTo ensure that the contract is the loan contract from the contract. The main contract borrowers alleged crime does not necessarily lead to ensure that the contract is invalid, the guarantor to the main contract on the grounds that the borrower is suspected of committing a crime shall not bear the liability of guarantee, the court determined according to law in the premise of main contract, to confirm the liability of the surety.

When the suretyship contract is invalid, the court shall, according to the lenders, borrowers and the guarantor of the fault, by their respective bear the return of the price, such as compensation for loss of the corresponding civil liabilities. Loan contract and suretyship contract is invalid, or because the loan contract invalid cause when the suretyship contract is invalid, the court shall be respectively according to the interpretation of the Supreme People's court "on certain issues concerning the application of people's Republic of China Security Law >" (France - [2000]44) seventh, eighth parties to determine bear civil liability.

Four, loan review of the facts

Article fourteenthIOU is direct evidence the existence of both desirable and borrowing lending relationship actually occurred, has proved that the force strong, the court should carefully review the authenticity of iou. Unless the contrary is irrefutable evidence enough to overthrow a recorded content, are generally not easily deny that force ious.

The debtor to a content or signature handwriting authenticity demur, the parties may provide additional evidence or rebuttal evidence. The court should be based on the available evidence on both sides to provide other evidence, combined with case and the related situation, the authenticity of a comprehensive examination and judgment.

The need for the judicial identification IOU is true, both parties may apply for judicial authentication. Both sides do not apply, the court can be made according to the specific facts of the case:

(a) the creditor only by a prosecution, no other evidence to support or a real existence and reasonable doubt, by the creditor for identification, the debtor shall provide samples of handwriting comparison.

(two) to provide creditors IOUS and other evidential materials with a certain degree of credibility, the debtor to ious authenticity demur, but did not provide a rebuttal evidence, by the debtor for identification.

In accordance with the law interpretation, creditor or debtor does not apply for identification or do not provide handwriting samples lead to the facts of the case can not be identified, the court should adjudicate according to law.

Forensic applications should be to meet the National People's Congress Standing Committee on the administration of judicial authentication "decision" and "Zhejiang provincial appraisal management regulations" provisions with identification of qualification of judicial authentication institutions and judicial authenticators to mention. Identification of costs incurred by the applicant, the ultimate burden in accordance with the State Council "means to pay the cost of litigation" (State Council Decree No. 481st) regulations twenty-ninth determination.

Article fifteenthThe only payment proof of delivery, no borrowing agreement documents, the debtor makes both sides does not exist a lending relationship or other relationship of defense, the creditor shall provide further evidence on both sides there are lending agreement.

To identify the existence of both lending relationship, the trial in accordance with the folk loan disputes; find out the debt of other legal relationship caused to the parties, the court should change the interpretation, claims and reasons by the creditor, according to other legal relationship of trial, the creditor insists no change, the verdict rejected the claim. A judgment rejecting claims, the creditors according to other legal relationship be prosecuted.

Article sixteenthAssume the creditors shall occur on loan amount, term, interest rates and money lending, lending agreement delivery of proving responsibility. The debtor of a defense, shall provide rebuttal evidence.

The loan principal, interest and other debt claims have been returned or returned, shall bear the burden of proof, cannot provide evidence or lack of proof, the claim shall not be supported.

Article seventeenthFor cash loans, creditors and does not provide a certificate of payment only against the debtor IOUs, put forward reasonable objection to payment delivery, the court may require the lender himself, a legal person or any other organization related agency personnel to appear in court, reason, stating the payment cash delivery time, location, source of payment, use specific facts and through, and accept the other party and the court of inquiry. Refuses to appear in court, should bear the corresponding consequences.

The court should be based on the amount of lending between, cash delivery people's ability to pay, the local or the parties transactions, trading habits and credit factors on both sides of the relationship, combined with the statement and court debate if my words and the indirect evidence, based on the standard of proof of civil action with high probability, the use of logic the daily life of common sense reasoning, etc., a comprehensive examination and judgment of whether the facts of real lending. When necessary, the court may conduct investigation and evidence in accordance with the terms of reference.

On a smaller amount of cash, lenders to make a reasonable explanation, generally regarded as the creditor has completed the proof responsibility behavior sense, may be recognized loan exists. To define the size, in view of the development situation, all over the province economy lend economic ability individual differences, the judge may according to the specific circumstances of discretion case.

Article eighteenthThe court in order to ascertain the facts of the case, can be considered the needs of the case, investigation or require the borrower to burden of proof on the part of the facts on the basis of authority. The facts of the case is unclear, the creditor shall both lenders and borrowers borrowing agreement, delivered legal facts of essentials, bear the burden of proof on the significance of results. The defense claims the debtor creditor by prejudice or restricted, claims have been destroyed or part of the fact that bear the burden of proof to eliminate the sense of.

Article nineteenthDuring the marriage, the spouses with individual name because of the needs of daily life debt, should be recognized as the common debts.

Daily life needs refers to the couple and the common life of minor children necessary items in daily life, including commodity purchase, medical services, education for their children, the daily culture consumption.

One of the spouses beyond the needs of daily life range of debt, should be identified as personal debt, except under the following circumstances:

(a) the lender can prove that the debt income property required for a family to live together, management;

(two) the couple the other party to ratify the contract after the debt.

Does not belong to the family daily life needs balance, lenders can invoke contract law article forty-ninth of the apparent agency regulations, require couples shared debt liability.

Citing the apparent agency rules require couples shared debt liabilities lenders, deal with the agency elements bear the burden of proof.

The apparent agency of burden of proof, application of the Supreme People's court "guiding opinions on several problems of the current situation of trial of cases of disputes over civil and commercial contracts" (method [2009]40) regulations of thirteenth.

 

Article twentiethFolk loan can be paid, also can be free. Both lenders and borrowers to pay the interest is not agreed or the agreement is not clear, according to the provisions of article 211st of the contract law, as do not pay interest, but borrowers voluntary payment of interest except.

The debit and credit interest rate on the loan within the time limit agreed, from its agreement. The agreed rate exceeds the lending behavior occurs when the people's Bank of China announced the same grade loans benchmark interest rate four times (hereinafter referred to as interest rates four times), more than part of the interest, the court generally does not protect. But borrowers voluntary to give people four times above the rate of interest, and no damage to the state, social interests or the legitimate rights and interests of others, the court may not intervene.

Article twenty-firstThe amount of borrowing IOU stated, generally recognized as the principal.

Interest has been deducted from the principal in advance of the principal, shall be determined according to the actual loan amount.

There is evidence that creditors show ious line both sides rolling settlement on pre loan principal and interest after the re issued, calculation of compound interest, the actual interest rate after conversion of no more than four times the rate of the amount owed, a confirmation can be identified as the principal; the actual interest rate after conversion in excess of four times the interest rate, the excess interest should be from the principal deduction.

Article twenty-second The two sides have agreed on the overdue lending interest rates, from its agreement. More than four times the interest rate, the excess interest, the court generally does not protect.

Overdue interest is not agreed or the agreement is not clear, the court can distinguish different situation:

(a) only agreed to take period of interest rate, no agreement overdue interest rates, lenders agreed reference interest rates or according to "the people's Bank of China on lending rates notice" (Yinfa No. [2003]251) third provisions concerning would impose a punitive interest rates, interest rates rise 30%50% agreed to interest rates, to the borrower overdue claims repayment of interest, can be supported, but are not limited to exceed four times the interest rate;

(two) neither agreed borrowing period interest, overdue interest rates also did not agree, according to people's bank lending ginseng China announced the same grade benchmark interest rate loans, to borrowers borrowing that since late date or the date of claims, loss of interest, shall support.

Article twenty-third Both lenders and borrowers responsibility for overdue repayment of overdue interest rate is agreed, but also agreed liquidated damages, the lender may choose to claim overdue interest or liquidated damages, but in no more than four times the rate of interest.

Lenders also claim overdue interest and liquidated damages, the real interest rate after conversion of no more than four times the rate of the court, to support.

Article twenty-fourthBorrowing agreed liquidated damages beyond four times the rate of the court shall reduce the excess part, be, but the debtor clear except for voluntary payment.

The provisions of the preceding paragraph, the trial by default debtor applies.

Article twenty-fifthThe debtor's payment is insufficient to pay off the negative to the same creditor number loan debt, shall first offset debts; several debts are due to lack of collateral or guarantee, it shall first offset amount minimum debt to creditors; the amount of security is the same, it shall first offset the debt burden heavier debt burden of the same; the maturity of the debt, according to the order set; the same time expires, according to the proportion of offset. However, the creditor and the debtor for debt or to pay off the sequence agreed otherwise.

In addition to the loan principal shall pay the interest and costs, when the payment is not enough to pay off all the debts, and in the absence of such agreement, the court shall set the following order:

(a) the costs related to the realization of creditor's right;

(two) interest or liquidated damages;

(three) the loan principal.

Creditors take the initiative to give up the sinking sequence of interest, the court should be respected.

Article twenty-sixthDebt is completed, the borrower to interest or liquidated damages over judicial protection range from prosecution request, lenders return or default interest payments paid, are generally not supported.

Article twenty-seventhThe dispute due to foreign currency borrowings, such as the Australian dollar, HK, Taiwan, lenders demand repayment of the same currency, can be permitted. Due to exchange rate fluctuations cause losses to lenders, lenders claim overdue repayment rate differential losses, shall support.

Borrowers are free of similar currency, have agreed to loan period, can be the reference rate loan expiration date according to the State Administration of Foreign Exchange announced the RMB repaid; not agreed loan period, can refer to the reference rate lenders that loan repayment to the State Administration of foreign exchange on announced RMB repaid.

Five, on suspicion of false litigation trial

Article twenty-eighthCourt folk lending dispute cases, according to the Zhejiang Provincial Higher People's court "about preventing and investigating false litigation cases in a civil trial in a number of opinions" (ZG [2008]362) regulations, careful examination of folk loan disputes, preventing and investigating false litigation, safeguard judicial authority, and promote the integrity of litigation.

Article twenty-ninthFound in any of the following circumstances in a court hearing, shall strictly examine the reasons, borrowing time, location, source of payment, delivery, money and credit economy in:

(a) the plaintiff is other more or major debts of debtor;

(two) the plaintiff's lending facts or reasons not to conform to the common sense, no IOU IOU existential forgery or may;

(three) the defendant in a certain period of time repeatedly involved in folk loan disputes litigation;

(four) the parties are close relatives and other special close relationship;

(five) one or both of the parties not to participate in litigation, agent on loan after the fact statement is unclear or contradictory;

(six) the parties to the loan fact without controversy or there is no substantive plea against;

(seven) other creditors or the borrower's spouse outsider's objection;

(eight) the rights of creditors to give up easily, reach a mediation agreement with the debtor;

(nine) other abnormal situations.

Article thirtiethOn suspicion of false litigation case, the court may take the following measures to prevent:

(a) to lenders, borrowers or the relevant personnel to appear in court my statement, and inform the adverse legal consequences without justifiable reasons, refuses to appear in court;

(two) to request the parties to further submit other relevant evidence, including the application of witnesses to testify in court;

(three) inform the relevant interested parties, and on the basis of the application of the parties or authority notify them to participate in the proceedings. Other creditors to participate in the proceedings, as third people; the spouse to participate in the litigation, as a co plaintiff or defendant;

(four) investigation authority;

(five) other measures can be taken in accordance with the law.

Article thirty-firstThe alleged false litigation case, the court should apply the ordinary procedure of trial.

One of the parties or parties involved in a number of cases related to borrowing can be given by a collegial panel trial.

The cases related to the merger trial, the trial process should take isolation principle and witness to different creditors, by different creditors separately to state the relevant facts, and accept the courtroom inquiry.

Article thirty-secondAfter examination and confirmation of false litigation folk loan disputes, not judge, shall reject it; force have been made judgment, the court shall be in accordance with the procedure for trial supervision, revoke the effective civil judgment or civil mediation, the court rejected the prosecution and.

The false lawsuit suspected cases, party applies for the withdrawal of the suit, the court may be permitted; after examination and confirmation of the false litigation cases, the party applies for the withdrawal of the suit, the court shall not permit.

Six, other

Article thirty-thirdFolk loan disputes trial should implement the principles of "giving priority to mediation, the combination of transfer negotiations" principle, in accordance with the regulations of Zhejiang Province Higher People's court, the Zhejiang Provincial Department of justice "on Further Strengthening the combination of litigation and mediation mechanism construction (for Trial Implementation)" (ZG [2009]8) requirements, guide the parties may apply to the people's mediation organization mediation, or entrust invite the people's mediation, organizational and personnel to carry out mediation.

Article thirty-fourthOn jurisdiction, bankruptcy reorganization involving the local social stability and financial security series of folk loan disputes, in the interest rate protection range should pay attention to the unification of criteria of judgment, may be necessary to listen to the local government and financial supervision departments.

Article thirty-fifthThe following borrowing, the parties concerned shall not protection, in accordance with the verdict rejected the claim:

(a) for illegal cohabitation, improper sexual relations behavior produce "green loss cost", "break fee" has harmed the social public order and good customs emotional conversion of debt borrowing.

(two) has occurred between the custody, maintenance obligations between parents and children and other members of their immediate families against lending family ethics and social public order and good customs.

Article thirty-sixthThe court shall strictly examine the borrowing whether the defendant is One's whereabouts is a mystery., and take the following measures, avoid delay of litigation:

(a) can have a close relationship to the relatives who illuminate other contact interested or requires the plaintiff to provide the defendant or clues, as far as possible, inform the defendant respondent;

(two) to One's whereabouts is a mystery. defendant litigation documents, in accordance with the "provisions on Civil and commercial litigation documents to a problem (for Trial Implementation)" (ZG [2009]129) regulations. In the form of announcement service relates to a copy of the indictment, the court summons, notice of proof of litigation documents shall be specified in the notice, the burden of proof period according to the specified;

(three) the legal summons, the defendant did not appear involved, the court trial by default, in accordance with the statutory procedure comprehensively, objectively the audit evidence, and make the judgment according to law. The absence of the defendant plea and providing evidence, does not affect the court to submit evidence to the parties shall make examination and investigation in accordance with law when necessary.

Article thirty-seventhCourts in the trial, found suspected illegal financing, borrowing behavior of illegal absorbing public deposits, drug trafficking, money laundering crime, or one of the parties that suspected of a crime, in accordance with the requirements to be transferred, the Supreme People's court "about some problems involving suspected economic crimes in the trial of cases of economic disputes in the" (France - [1998]7) regulations tenth one, eleventh, twelfth, according to the specific circumstances:

(a) the case were suspected of a crime, be the case, the court rejected prosecution, refund the fees for accepting the case, the relevant materials to the public security organ or the procuratorial organ;

(two) if a party advocates suspected of a crime, but did not provide evidence or other parties have suspected but not necessarily associated with folk loan disputes or does not belong to the same legal relationship, the case to trial, but the criminal suspect clues, materials can be transferred to the public security organ or procuratorial organs investigation;

(three) cases, must be based on the investigation, criminal trial results as the premise, order to suspend the litigation. Suspension of action, no special circumstances, within twelve months, the criminal case still cannot investigate terminative, can according to the specific situation of restoration of folk loan disputes trial.

The court rejected the prosecution, the public security organ or the procuratorial organ is the report received material or relevant parties to the court shall not be placed on file for investigation, or after the withdrawal of the case on file for investigation and prosecution, criminal cases that do not constitute a crime after the court acquitted, lenders to sue in civil court, the court shall accept the case, and on hearing that the facts of the case, to make the civil judgment.

The court should be used with caution the court rejected the prosecution and suspend litigation.

Article thirty-eighth Folk loan disputes trial, shall apply to the contract law, property law, guarantee law and the general principles of the civil law and other laws. Legal, regulations do not specify or ambiguous provisions, apply to the Supreme People's court "several opinions about people's court lending case" (Law No. >[1991]21 < min), the judicial interpretation of the provisions of.

Seven, annex

Article thirty-ninthThis guidance issued since the date of implementation, such as the specific content and the promulgation and implementation of the laws, administrative regulations and judicial interpretations inconsistent, with new laws, administrative regulations and judicial interpretation shall prevail.