The Chongqing High Court: some problems of small loan companies and commercial cases (a)

The Chongqing Municipal Higher People's court recently issued "on the trial involving small loan companies, Guarantee Corporation, the pawn business case" answers to some questions, the main contents are as follows:

The effectiveness of the 1 small loans company loans to enterprises how to identify?

The petty loan company is to have the right business loan business, so the petty loan company loans to enterprises, and between enterprises and corporate loans are different in nature, do not belong to business lending. The borrower signed with the petty loan company loan contract enterprises lending the request on the grounds to confirm or defense loan contract invalid, the people's court shall not support.

2 small loan companies to carry out the approval documents listed outside the range of financial business effectiveness to that?

"Interim Measures" management pilot small loan company in Chongqing City twentieth stipulates: "the City Hall financial office approval, the petty loan company may engage in the following businesses: for loans, bills discounting, transfer of assets. The petty loan company shall not engage in any form of illegal fund-raising, disguised absorbing public savings. Without City Hall financial do agree, the petty loan company shall not be listed outside the scope of the business management approval documents."

Accordingly, the petty loan company in violation of "Interim Measures" provisions of the pilot small loan company in Chongqing City, the management of article twentieth, illegal fund-raising, disguised absorbing public deposits or loans, bills discounting, carry out the transfer of assets outside of the financial business, is not only a violation of administrative provisions, but also seriously disrupt the financial order, the people's court shall be deemed as invalid operation behavior is beyond the scope of business.

3 small loan company in violation of "Chongqing City Interim Measures for the management of small loan companies" twenty-fourth, twenty-fifth, thirty-third on the line, the interest rate and regional regulations of lending behavior effect how?

The petty loan company in violation of "Chongqing City Interim Measures for the administration of pilot micro credit company" twenty-fourth, twenty-fifth, thirty-third on the line, the interest rate and the area of the provisions of loans, the people's court shall generally be identified effectively.

Provisions of small loan companies must not exceed limit, super, Super Regional benchmark interest rate loans for the purpose is to effectively administer and control industry of small loan company risk, does not involve the relationship between equal civil subjects of private law, so the petty loan company in violation of relevant management regulations above quota, super, super regional interest rate loans, belonging to the breach of administrative provisions of the act, shall assume the administrative responsibility according to the law of administrative liability, but does not affect the validity of a contract for loan of money.

The small loan company interest exceeds the people's Bank of Chinese released benchmark lending rate 4 times, or loan contract overdue interest, liquidated damages in accordance with the contract period and more than 50% interest rate broke surface calculated part, or the borrower fails to use the loan contract agreed to impose a punitive interest, liquidated damages and more than in accordance with the loan the contract specified in the loan interest rate of 100% calculated part, the petty loan company for more than part of the request for payment, the people's court shall not protect; loan contract is completed, the borrower to void the contract on grounds to request the return of the excess, the people's court shall not support; if the loan contract is not fulfilled, the borrower advocated excess offset of loan principal and interest, the people's court shall support.

4 small loans to others how to identify the financing effectiveness?

"Interim Measures" of financing small loan company in Chongqing city fourth stipulates: "the petty loan company can carry out the following ways of financing, and accept the financial office supervision: (a) financing from banks and financial institutions; (two) the financial assets transaction platform (including institutions, Asset Management Co, Trust Investment Company and specializes in trading the financial assets of the organization, the same below) to repurchase the assets transfer business; (three) to the major shareholder oriented loans; (four) the petty loan company's trade financing; (five) the approved other financing way."

The petty loan company financing in violation of the provisions of the preceding paragraph, is not only a violation of administrative provisions, but also seriously disrupt the financial order, the people's court shall, according to the "Supreme People's Court on certain issues concerning the application of people's Republic of China Contract Law > interpretation (a)" the provisions of tenth, identified the financing action is invalid.

5 small loan companies and the borrower agreed by the collateral management costs or fees, survey fees similar nature of the cost of, how to deal with?

The petty loan company and the borrower should in accordance with the agreed payment of management fee guaranty loan contract dispute, the people's court shall be dealt with according to the loan company to fulfill the obligation of security management situation. If the small loan companies to prove their actual obligations collateral management and the corresponding costs, the people's court shall support the collateral management fees small loan company claims in the range of evidence; if small loan companies can not prove, the people's court for collateral management fees small loan company that does not support.

To sign the loan contract, charging a small loans to borrowers in consultancy fees, survey fee or similar nature of the cost, the interest is a small loan companies, the cost and the contractual interest and maximum shall not exceed 4 times the publication of the people's Bank of China during the same period loan datum interest rate, more than part of the people's court shall not protect.

For small loan companies through consulting fee, investigation expenses in the form of charge interest, the people's court shall, according to the specific case, pay attention to check whether there is interest withholding, interest, whether the scope of legal protection of interest more than offset the sequence is consistent with the provisions of laws and judicial interpretations.

6 the petty loan company's other people signed a contract with the borrower collateral management costs or fees, survey fees similar nature of the cost of, how to deal with?

In order to lend to small loan companies, other people outside of the borrower and the petty loan company signed a contract, agreed to pay the collateral management costs or fees, to other people outside the petty loan company's investigation fees similar nature of the cost, the borrower in the loan claim deduction of principal or interest, the people's court shall not support. According to the contract the parties separate prosecution, the people's court shall be accepted according to law, and according to the Party of the burden of proof performance of consulting, survey, collateral obligation and the actual situation of cost management be.

Since "the Chongqing Higher People's Court issued" on the trial involving small loan companies, Guarantee Corporation, the pawn business case answers to some questions > notice "(Chongqing high Law No. [2013]245).