The Supreme Court of Jiangsu province "loan contract dispute cases Guide 2010"

    PrefaceIn order to further strengthen the work of the adjudication supervision and guidance, unified the court case justice scale, improve the disputes and litigation to resolve level, Jiangsu Province Higher People's Court of labor disputes, construction contracts, torts, contracts of sale, loan contract, infringement of business secret, the patent infringement, intentional injury, work-related injuries that multiple, common cases, organized the class trial guide. Now these trial guide assembly issued, for the province's courts at all levels use and reference.  Coding' Two O O in November

 

  Jiangsu Province Higher People's court "loan contract dispute case trial Guide 2010"

 

 The basic situation, loan contract dispute cases

 

With respect to financial institutions borrowing as a party to the contract of loan contracts, loan contracts can be divided into the following categories: one is between the natural person and natural person, natural person and non financial enterprises lending contract, two is between the enterprise loan contract, three non financial enterprises approved to carry out lending business involved borrowing the contract. The first loan contract disputes court statistics calibre of folk loan disputes. Financial laws and regulations the lending of funds between non-financial enterprises in violation of, do not belong to private lending, as between enterprise loan disputes cases.

 

The loan contract dispute case especially folk loan disputes, in recent years has shown a continued growth trend, the number and scale of cases surged, and the emergence of new characteristics different from the past:

 

1, the hidden "usury" amazing, interest rate. The loan contract interest rate usually between bank lending rates over the same period of 2 times to 4 times, in recent years the loan interest rate higher than bank interest rates 4 times over the same period of "usury" has become a universal phenomenon of such borrowing, and covert means. Lenders tend to be high interest rates as part of a principal write IOU, once a dispute, the court is very difficult to judge the principal amount of the actual lending. High interest loan contract shunt the formal financial institutions depositors, massive loss of bank deposits to the civil market, bank deposit scale and business income. For borrowers, on the one hand, if you have a bank loan and non loan, often consider non-financial borrowing money to pay the high cost, heightening the risk of credit assets of financial institutions; on the other hand, in the face of extremely high interest rates, borrowers can not repay, the can not afford to pay debts when, had to pass new high interest loans to repay debt, outright, forming a vicious spiral.

 

2, appeared in the water for industry occupation lenders and covert operations agency. A huge market led to a food for the benefit of the industry and occupation lenders to set borrowing from charge high fees for the industry of intermediaries, and even the mortgage conduit company, conduit company also engaged in housing loan intermediary business. Pawn engaged in lending to the borrower, charge exorbitant interest in management fees in the name of the phenomena are also very prominent.

 

3, usage of loan centralization, illegal fund-raising phenomenon looks up. The individual enterprise production and operation funds established from the beginning on the non financial credit support, the emergence of numerous specializing in non normal lending phenomenon lending enterprises or individuals to the same borrower concentrated lending. As the illegal fund-raising involved widely, lenders are lack of financial knowledge, and even the future life of money all the cast, many people also relatives and friends in "common prosperity". Once borrowed money can not be recovered, lenders often take all kinds of aggressive behavior, even intimidation, beatings, imprisonment, mandatory force to dispose of property and other illegal means, and some even have a black evil forces backing behind, hidden evoked criminal problems.

 

Because of the above phenomenon: first, the demand for funds a wide range. In the face of market opportunities, market main body more and more new operation, business and exhibition industry are in need of funds, many small and medium enterprises, individual operators to become the main body of the most in need of funds, the financing is characterized by a single amount is less, but the face is very wide. Secondly, the financing channel is not smooth. High threshold, procedures, mode of operation is not flexible and other factors make the small and medium-sized enterprises and the self-employed are generally facing financial institutions to the financing channels are sluggish plight. Thirdly, the folk capital to facilitate active. In the low deposit interest rates, financial product revenue is low, a lot of private funds in financial system. Has the characteristics of fast, flexible private funds, despite the high interest, but in weighing the market opportunities, financial loan period and other factors, small and medium-sized enterprises and the self-employed tend to get "quick money". Fourth, changes in the macroeconomic situation. Small and medium-sized enterprises and individual operators of small and medium-sized business subject and anti risk ability is weak, the macroeconomic situation changes, the production and operating activities are extremely vulnerable to the negative effects, not the normal service, resulting in a large number of disputes.

 

Two basic principles, trial of cases of disputes over loan contract

 

1, the protection of the legitimate lending behavior, smooth financing channels. The maintenance of good order and financial operation environment, promoting coordinated development of finance, is an important aspect of economic development and the maintenance of financial security. In the growing status of private capital, investment demand is strong, the legitimacy is not simply take a "block" approach negative folk financing behavior and wise and effective means, the people's court in the trial of cases of disputes over loan contract, should give full play to the judicial functions are, and make full use of legal, administrative regulations and the relevant provisions the judicial interpretation of the equal protection of the legitimate rights and interests of the parties, through the trial, orderly norms of civil and commercial cases and guide private financing of health, 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, the leading justice.

 

2, to crack down on illegal lending behavior, safeguarding the financial security and social stability. The people's court shall cooperate with the financial supervision department, and crack down on various illegal sanctions to disrupt the financial order, illegal behavior, to standardize the financial order, the prevention of financial risks, maintaining social stability to provide a powerful legal guarantee. 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 current fund for small and medium enterprises opportunity to avoid financial supervision, to seek illegal interests, safeguard social stability. In the trial and execution of cases of disputes over loan contract process, discovered the existence of illegal fund-raising suspects and crime clues, or cause systemic risks, should be timely informed of the situation to the public security, procuratorial, supervision, industry and commerce departments, processing and risk prevention coordinating relevant cases; the timely transfer of cases or criminal clues; to strengthen the funds outstanding pursuit to use various means to protect the legitimate rights and interests of creditors, in accordance with law; but also do emergency plans, to prevent a few illegal personnel, organization to group events and lead to new social contradictions.

 

3, standardize lending behavior, and promote the healthy development of private finance. The people's court shall pay attention to the role of trial functions on borrowing behavior and the private financial market regulation and guidance, to guard against and dissolve the folk financial risks, promote the healthy and stable development of informal financial market. Through the law and properly handle loan disputes, guide various main lending to strengthen legal consciousness and awareness of risk prevention, promote the integrity of the social value.

 

4, pay attention to the mediation based on finding out the case. Loan contract parties generally have the life, production and living area and other ties, trial of cases of disputes over loan contract, should pay attention to the mediation, timely and properly resolve the dispute between the parties, to prevent the intensification of contradictions. But the mediation process in lending disputes, we should pay attention to strengthening the legitimacy of the mediation agreement review, including litigation request is legitimate, whether relatives or other relationships between the parties, the facts, grounds for prosecution is obviously unreasonable content, one of the parties if simple admission, not defense.

 

Determine the effect of three, loan contract

 

1, invalid. Mandatory harm public interests, violation of laws and administrative regulations of the loan contract shall be invalid. Loan contract party unauthorized financial business operation or a financial business, shall be deemed as loan contract, including enterprise the name of loans to employees of illegal fund-raising; enterprises to borrow the name of illegal to social capital; corporate loans to the public the name of loans; to "act form not specific to the majority of illegal financing capital standard"; to others to lend money profit for the industry "underground banks" in violation of laws, administrative rules and other behavior etc.. The act is suspected of committing a crime, should be in accordance with the law and "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.

 

2, the effective identification. For non-financial enterprises to raise funds in accordance with the conditions and procedures prescribed by law, to the production and operation of enterprises need temporary small loan to the specific natural person, small loan non to obtain high interest for the purpose to provide temporary nature, should be identified.

 

The 3 part is null and void. Loan contract agreed that interest rates are too high, for excessive interest rate agreed part shall be deemed as invalid, the other parts.

 

The compound problem agreed in loan contracts, should be prohibited in principle, because the "compound interest" of interest can easily lead to the rapid expansion of the loan amount, damage the legitimate interests of the. However, if the parties have agreed to the loan principal and interest, the calculation is not more than similar bank lending rates four times over the same period, according to the principle of private autonomy can be protected, and more than similar loan interest rate four times the part of the bank will be deemed void.

 

The lender to the borrower in the delivery of the principal advance deduction of interest, belonging to the infringement of the interests of the contract, do not accord with the true meaning of the borrower borrowing, but also against the main lender borrowing contract delivery obligations, the repayment of interest on time delivery in advance to the loan, regardless of whether the borrower consent, shall be deemed void. The entity processing includes two aspects: first, the loan amount should be identified the actual amount of the loan, rather than the agreed amount of the loan; second, interest on the loan should be based on the actual amount of the loan interest, not agreed to the loan amount calculation.

 

Identification principle four, loan contract interest rate

 

Interest rate is the ratio of a certain period of time the amount of interest and loan principal. Based on the principle of respect for the autonomy of the parties, the parties agreed to interest rates, in does not violate the law, administrative regulations and the judicial interpretation of the case, be protected, but should pay attention to the following three questions: first, loan contract interest may not be four times higher than the same period the bank loan interest rate. Second, the interest can not be pre loan contract agreed button, if the withholding, should calculate according to the actual loan amount as the loan principal. Interest withholding is disguised raise interest rates behavior, is prohibited by law, even if the borrower agrees because of the existence of substantial inequality and not allowed. Third, the loan contract if the parties have not agreed upon interest, as interest free loans.

 

The following principles:

 

1, the loan contract for the payment of interest was not prescribed or clearly prescribed, as non payment of interest. But after the expiration of the period stipulated in the contract, the debtor fails to repay the loan, overdue interest calculated from the date shall be the date of the contract term, and is no longer the interest free loan. Overdue interest refers to the regulations of the people's Bank of Chinese in borrowers to borrow loans overdue payments to the lender of the extended use of funds interest, may refer to the bank loan interest rate during the same period. Although the agreed loan contract shall pay the interest, but interest standard is not agreed or the agreement is not clear, interest calculated according to the same bank lending rates over 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 loan interest rates four times, in accordance with the agreed loan interest calculation standard of overdue interest.

 

2, in order to prevent both lenders and borrowers to evade the law, to obtain high interest to default payment, the loan contract both parties interest and liquidated damages, the people's court shall actively reviewed in the loan contract dispute cases in the process, to adjust according to the "contract law" provisions of the people's Republic of China after 114th. The liquidated damages and interest and more than during the same period by the bank loan interest rate four times the calculation of interest, not to protect.

 

3, the borrower's repayment contains more than during the same period by the bank loan interest rate four times the calculation of interest, according to the borrower's claims, the exceeding part can offset the principal. 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.

 

Five, approved by the development of non-financial corporate lending business cases involved borrowing contract dispute processing

 

Approval of lending small loan companies, rural mutual fund and non financial enterprises with 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. For more from pawning enterprise lend the dispute, in accordance with the following principles:

 

1, determine the nature. With the establishment of the enterprise on the basis of "pawn pawn management approach" and the contract signed by the debtor to provide mortgage, loan, the debtor to property rights, chattel pledge collateral or to set the real estate collateral security, access to borrowing from the pawn business, the nature of the contract for the loan contract.

 

2, determination of validity. 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 repay the loan principal and interest, the 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.

 

3, the calculation of interest. To be protected interest that pawn contract 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.

 

Treatment principle six, between enterprise loan contract dispute

 

Loan contract between enterprises, 1. Business lending contracts in violation of the relevant financial regulations, the contract is null and void. The Supreme People's court in the "Guangxi import and export trade of Limited by Share Ltd and Jiangxi Jing'an County Materials Company, Guangxi Hepu County, material supply and marketing company, Guangxi Hepu County Bureau of goods of Huajian company joint venture contracts invalid return of investment disputes retrial case" to the borrower shall return to void the contract the loan principal and interest payment of legal capital occupation, during the period of. In the current situation, the enterprises will be its own funds to other enterprises to help them solve the production and operation of the funds needed, interest shall be calculated in accordance with the banks in the same period the same benchmark lending rate.

 

The judgment and execution of 2, many creditors to the same debt enterprises launched a series of lawsuits. One is to coordinate. For many creditors to the same debt enterprise launched a series of lawsuits, between different courts in different area, the same court accepted the case and different judicial departments should strengthen the communication of information, coordination, centralized decision, in the unified guidance of superior court under the coordination of the implementation of similar cases, avoid all over the court for the same debt enterprise the emergence of the standard is not unified, and a number of cases involving the same debt enterprise contradictions and conflicts in the implementation of the phenomenon, according to the equal protection of the legitimate rights and interests of all creditors. Two is to timely report. For many creditors to the same debt enterprise launched a series of lawsuits, enterprise bankruptcy cases, group litigation cases, mass cases may affect the existence of harmony and stability factor of the case, the people's courts at all levels of the relevant departments to timely judge committee reports to the Dean, trial; especially serious cases should be reported to the people's court at a higher level in a timely manner; and promptly to the local Party committees, people's Congress report, and timely and relevant departments of the local government communication. The specific procedures in accordance with the "Jiangsu Province Higher People's Court Notice" on the establishment of big cases report system in the implementation of the court.

 

Seven, loan cases evidence

 

Authenticity examination of the principal amount of the people's court should be a comprehensive case evidence and fact analysis and judgment. Mainly includes: a record amount of the loan with interest is common folk lending market local department; creditors can explain specific borrowing occurs; the statement content exists contradiction; whether creditors had a similar deal precedent; whether the court debate caused by the words of creditor statements such as reasonable doubt.

 

Lenders to ious assert a claim, the borrower borrowing IOU contain anti argued that no delivery, no loans, loan amount that 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. In the trial, especially need comprehensive review of loan delivery, for a large loan, if the lender claims are cash on delivery, through the review of the lender's own economic strength, trading habits and witness's testimony, comprehensive judgement, if lenders in a no other examples of evidence law, he shall bear the burden of not the consequences of that fact, not borrowing delivery.

 

In the trial, evidence review also pay special attention to advocate the borrowers to lenders to be recognized cases, not only to determine the amount of debt the borrower to lender approval, review of burden of proof responsibility is actually done, find out the actual capital flows corresponding to that the obligee's rights, prevent the borrower and the lender to damage specific others through malicious litigation, illegal purposes such as other creditors of the legitimate interests of the borrower.

 

Eight, the loan contract dispute cases involving the treatment of illegal fund-raising problems

 

Illegal fund-raising refers to legal persons, other organizations or individuals, without authority approval, to raise funds from the public behavior. Has the following characteristics: 1, without the approval of relevant departments approved according to law, including the approval without approval authority department funding and approval authority issues beyond the authority to approve the fund-raising. 2, commitment to debt service to investors in a certain period of time, the principal monetary form mainly divided by interest, also includes the physical form or other forms. 3, social not specific objects that the public to raise funds. 4, in the form of legal cover up their illegal fund-raising properties.

 

Illegal fund-raising "legal" form is more and more, more and more covert, illegal fund-raising behavior may take the form of civil and commercial disputes to the court, but also presents the sporadic, subtle phenomenon, is to form, more realistic case has not been concluded: when the non law fund-raising operation to a certain stage, because of fear of money and the expected benefits in vain, raising participants even aware of the risk has been unable to control, which is often taken to be a wait-and-see attitude, and even take help from sponsors to expand home practice, rather than to the public security organs; there is no hope in the case, from the participants tend to bring a lawsuit to the court on the basis of legal form of civil and commercial contract, expect to recoup their losses, and even to obtain illegal benefits, the types of litigation may be disputes, civil contract lending to corporate contract disputes, lease contract disputes, contract disputes and other ordinary civil and commercial disputes, and initiator to avoid illegal fund-raising behavior crime and shall be investigated for criminal responsibility is often recognized participants litigation request, the more to engage in discrimination case, judge civil and commercial cases of illegal funds Behavioral barriers.

 

Form of illegal fund-raising behavior becomes more and more complex, the 2007 illegal fund-raising inter ministerial joint conference released the illegal fund-raising activities, forms of up to 12, relates to the creditor's rights and equity, commodity marketing, production management and other four major categories of disputes, specifically including: name 1, by planting, breeding, project development, estate development, ecological environmental protection investment illegal fund-raising; 2, to disguise the issue or issuance of stocks, bonds, investment funds, lottery and other rights certificate or futures trading, the name of pawn illegal fund-raising; 3, the claim of shares, bonus shares for illegal fund-raising; 4, through membership cards, membership cards, membership cards, discount cards, consumer card etc. illegal fund-raising; illegal fund-raising 5, the sale and leaseback, repurchase and transfer, development of membership, the business to join with the "fast integration method" way; 6, using folk "will", "social" organizations such as underground banks or illegal fund-raising; 7, the use of modern electronic technology to construct a "virtual" products, such as "electronic shops", "electronic department" investment entrusted with the operation, due repurchase of illegal fund-raising; 8, the industry, Real estate and other equal division of assets disposal, illegal fund-raising through the sale of its shares; illegal fund-raising 9, signed by the commodity distribution contract form; 10, the MLM or secret series form of illegal fund-raising; 11, use the Internet to set up investment funds in the form of illegal fund-raising; 12, using the "electronic form of gold investment" illegal fund-raising.

 

These disputes have been or may be presented in the form of civil and commercial cases, requirements of civil and commercial judges to alert and sensitive, grasp the basic characteristics of illegal fund-raising, strict review of the evidence cognizance, accurate discrimination, and to take preservation measures timely, found illegal fund-raising crime suspicion, communicate actively with the relevant departments, the timely transfer of. Even if the defendant admits the plaintiff's claim, the court can not directly support the plaintiff's claim, or is likely to make the decision lacks factual basis, covering cases, even true background caused by third human rights violations. In the civil and commercial disputes, under normal circumstances, the plaintiff bears the burden of proof on their litigation request, the burden of proof in support of the plaintiff should include the evidence and burden of persuasion. From the angle of burden of proof, the plaintiff must first own lawsuit cites evidence fully demonstrated, calculated on the basis of legal relation, and the specific facts of the case, including loss of. In the trial of civil and commercial cases should pay special attention to the burden of proof standard, grabbed four of the illegal fund-raising to discriminate, with particular attention to the following points:

 

1, the flow of funds involved in the case facts, to put an end to the case between the parties is simple phenomenon, for the individuals involved large amounts of money transfer, account funds transfer case that way and the main trading bank transfer.

 

2, for the purchase and sale contract dispute, to verify the real goods transactions, especially for the amount of liquidated damages is excessively high, profits low distortion, or transactions subject and the subject matter of the contract no relevance contract, special attention should be paid to review whether the illegal financing behavior in fiction as a means of trade contract. The enterprises 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, the flow of funds closed running between the subject related contract, should be identified as borrowing between enterprises and invalid contract.

 

3, the social not specific objects to raise funds by civil and commercial disputes, hearing in the case, should require the parties to give the relevant legal approval procedures of evidence, and not simply to the local government or the relevant departments for approval as its legal civil legal act according to.

 

4, the trial trust funds contract disputes, to focus on the review in terms of the contract if there is no loss or commitment to fixed income, have the illegal fund-raising nature of terms.

 

5, in the commercial housing sale contract dispute, should pay attention to whether there is any cutting property form does not conform to the actual fictitious transaction contracts for bank lending review of the phenomenon, whether there is reverse of the sale, after sale charter to raise funds for the false trading purpose.

 

6, in some cases sporadic, for the parties to provide or disclose to the same parties and many other similar transactions, we cannot adopt the processing method on the case, be alert, active mining case clues.

 

7, meet new type, new problems are difficult to identify leadership, should promptly with the local illegal fund-raising meeting or organizations, joint research.

 

From the formation and operation mode of illegal fund-raising behavior, were later joined the funds to give priority to meet the first join the interests of participants involved in illegal fund-raising, in immediate change for the sponsor's most ardent supporters, from the purely deceptive commitment initiator consider participation into the victim range, is not consistent with the actual state of mind of participants in such cases. Therefore, as the illegal fund-raising events contain repeated periodic outbreaks of, in the course of civil and commercial disputes cases, involving the illegal fund-raising for the contract dispute, in that the contract is null and void, in addition to the parties that the interest on the principal or the loss, should not support.

 

Nine, loan contract dispute of suspected criminal problem

 

The State Council "illegal financial business activities and illegal financial institutions banned methods" and "the State Council approval for the establishment of" illegal fund-raising of inter ministerial joint conference system has defined the investigation of public security organs in the suspected of illegal fund-raising case cognizance responsibilities. For the cases of disputes involving illegal fund-raising, because this kind of case has the characteristics of unity of stakeholders, recovered strength and return ratio, to safeguard the financial order, maintain social stability is very important. Multiple processing but not conducive to the return of unified by a certain percentage of orderly, easy to be a subject of interest using, and create more social contradictions, so such a case for all case.

 

In 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 accepting the case, the people's the court shall rule to reject the 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.

 

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.

 

Cases of disputes over loan contracts 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. On the basis of the effective judgment to have completed the execution of cases, should be made to the implementation of the relevant creditors rotary ruled, in accordance with the original implementation based on the benefits of recovery of execution.

 

Ten, the debtor's bankruptcy case loan contract dispute

 

1, enterprise workers to raise funds problem. "Enterprise bankruptcy law" provisions of article 113rd, "the bankruptcy property in the priority liquidation bankruptcy costs and total benefits of debt, in accordance with the following order of priority: (a) the bankrupt owed workers wages and medical, disability benefits, pension costs, should owe the basic old-age insurance, as the individual account of the basic medical insurance expenses laws, administrative regulations, and shall pay compensation to employees." This did not include workers to raise funds. This and the Supreme Court "on Several Issues concerning the trial of enterprise bankruptcy law cases" are different, the provisions of the enterprise workers to raise funds for the first order liquidation, but part of the high interest against the law not protect. In the "enterprise bankruptcy law" is not clearly defined, and the judicial interpretation of previous and not be abolished under the circumstances, the judicial interpretation of the relevant provisions is still valid, namely for the basic principles of workers to raise funds is still in accordance with the provisions of the judicial interpretation in the first order liquidation. But here we should pay attention to distinguish between the following problems: the first, according to the strict definition of fund-raising target different legal enterprise workers and illegal fund-raising, for illegal fund-raising rights shall be included in the ordinary creditor's rights; second, to distinguish between investment behavior and financing for investment funds, according to the nature of risk, not as a fund-raising disposal; third to be clear, high interest shall not be protected.

 

2, enterprise debt disputes. Management on creditors claim that the amount of debt of creditor's rights to the creditors' meeting schedule for verification, it claims disputes, if necessary, shall file a lawsuit, the trial procedures. The court in the trial of such cases, involving the illegal fund-raising found class suspect shall be transferred to the public security investigation, decisive, not simple sentence, making illegal claim supported by law.

 

3, to promote the reorganization process. "Enterprise bankruptcy law" gives the multi subject to bankruptcy reorganization procedure start right. In the reforming process, the long-term debt repayment plan for the conditions to obtain equity become a new mode, because consensus exists between the creditor and the new investors voting groups, the courts often support this agreement. However, the details of the repayment plan including age, proportion, and the specific types of creditor's rights transfer amount, delay time, requires the court carefully review within the framework of the law, for the existence of raising funds illegally criminal suspects rights shall be accurate qualitative, approved the actual principal amount, never let the reorganization become illegal fund-raising behavior - continue to survive at the same time the feasibility for tool; the repayment plan should also be combined with the comprehensive study of the production and operation of the project, the sinking time is too long, investors own funds from unknown sources, should be careful to prevent asset quality approval, the enterprise's debt deteriorated again, contradiction accumulating.

 

4, found the bankrupt enterprises from illegal behavior. Process 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. For illegal fund-raising part of the principal amount should not be borne by the court accepted a bankruptcy case, it shall be illegal fund-raising leadership conference or organization in accordance with certain procedures, according to the "Regulations of cognizance of illegal financial institutions and illegal financial activities banned methods" such regulations and judicial interpretations, entered the stage when the distribution of the bankruptcy property in the third order liquidation.