Notice of the Supreme People's Court issued the "opinions" about people's court cases of borrowing

Method (min)<1911>21No.

 

The people's courts at various local levels, military courts at all levels, the National Railway Transportation Intermediate Courts and lower courts, the maritime courts:

The "opinions" about people's court lending case issued to you, please execute. In the implementation of the pay attention to summing up experience, any comments and questions, please timely report in our hospital.

1991Years8Month13Day

 

Annex:Several opinions about people's court lending case

1991Years 7On 2DayThe judicial committee of the Supreme Court 502ndThrough the discussion meeting)

 

The people's court lending case, should be in accordance with the voluntary, mutual benefit, equality, legality, protection of the legitimate rights and interests of creditors and debtors, limiting the high interest rate. According to the judicial practice, we hereby put forward the following opinions, for in such cases when the reference implementation.

1Between citizensLending disputes,Citizens and legal personsLending disputes andBetween citizens and other organizationsLending disputes, should be the lending case acceptance.

2 due to foreign currency borrowings, dollar and treasury bonds and other negotiable securities dispute lawsuit to the court, the admissibility of the case should be borrowing.

3 for the lending relationship clear, creditors for an order of payment, the people's court shall be in accordance with theThe Civil Procedure LawA review of the relevant provisions of the acceptance procedure.

4 the people's court to review the prosecution of the case when the loan, according to theThe Civil Procedure LawArticle 108thProvisions, shall require the plaintiff provided a written note; no written IOU, should provide necessary basis in fact. To do not have the above conditions of prosecution, ruled inadmissible.

5 when the creditor against the debtor, One's whereabouts is a mystery., jurisdiction where the court by the debtor's original domicile or property. The court should require creditors to provide proof of evidence for the existence of the lending relationship, after accepting the appeal notice summoning. The expiry of the notice, the debtor is not responding, lending relationship clear, after the trial to judgment by default; lending relationship can not be identified, order to suspend the litigation.

In the trial of the home, One's whereabouts is a mystery., lending relationship clear, may make a judgment by default; the facts are hard to identify, order to suspend the litigation.

6 borrowing rate can be higher than bank interest rates, the people's court to local specific master according to the actual situation in the region,But the maximum shall not exceed four times the same bank loan interest rate (including the interest rate the number). Beyond this limit, the excess interest is not protected.

7The lender shall not be included in the Jin Mou usurious interest. Creditors will interest into the principal interest discovery proceedings, the interest rate exceeds the prescribed in article sixth limit, the excess interest protection is not only the return of principal.

8 both lenders and borrowers to have no agreement dispute interest, but cannot prove, can refer to the same bank loan interest rate.

Borrowing the dispute on the agreed interest rate, but cannot prove, may refer to the provisions of article sixth of the views of interest.

9 regular interest free loan between citizens, lenders require the borrower to pay overdue interest, or irregularly interest free loans after being urged not to; lenders to demand payment of exhorting interest, can refer to the same bank loan rate of interest.

10 a party to fraud, coercion or position of vulnerability, so that the other party formed in case of violation of the true meaning of the lending relationship, should be recognized as invalid. Lending relationship is invalid caused by creditor's behavior, only the return of principal; lending relationship is invalid caused by debtor's behavior, in addition to the return of principal, should also refer to the same bank loan interest payment of interest.

The 11 lenders that the borrower is to engage in illegal activities and borrowing, the lending relationship is not protected. The illegal lending behavior of both sides, in accordance with theThe general principles of the civil lawArticle 134thThird, "on the implementation of" the people's Republic of ChinaThe general principles of the civil law> views (for Trial Implementation) "(hereinafter referred to as the" opinions "(for Trial Implementation)) the provisions of article 163rd, article 164th sanctions.

12 among citizens due to foreign currency borrowings, NT disputes, lenders demand repayment of the same currency, can permit. Borrowers are free of similar currency, reference may be made to pay the local foreign exchange swap price RMB repaid. The lender to demand payment of interest, can refer to repay China bank foreign currency savings interest rate.

Borrowing foreign exchange certificate disputes, according to the above principles.

13 in the lending relationship, only contact, the role of the people, shall not bear the liability of guarantee. The performance of debt is that meaning, should be identified as the guarantor, guarantee responsibility.

The 14 act on behalf of the borrower issuing IOU generation the loan, borrowers do not admit, behavior and cannot prove, bears the civil liability.

During the 15 partnership, individuals to borrow for partnership, partnership, common reimbursement by the partners; the borrower can not prove that the loan for partnership, by the borrower to repay.

16 guarantee of debt after the maturity of the debt, the debtor has the ability of repayment by the debtor, the debtor without ability of responsibility; pay, unable to pay or debtor One's whereabouts is a mystery., the guarantor shall bear joint and several liability.

The borrowing period expires, if the debtor does not repay, debit and credit, both sides did not seek consent to ensure repayment or interest rate to reach an agreement, the guarantor will not bear the liability of guarantee.

No guarantee of debt disputes, the debtor to apply for additional new guarantor to participate in litigation, the court should not permit.

To ensure the responsibility of controversial, in accordance with the "opinions" (for Trial Implementation) the provisions of article 108th, Article 109, Article 110 treatment.

The 17 trial lending cases, the resulting from the right mortgage lending relationship should be protected. In case of disputes, in accordance with theThe general principles of the civil lawArticle eighty-ninthSecond and the "opinion" (for Trial Implementation) the provisions of article 112nd, article 113, Article 114, Article 115, article 116 treatment.

18 on the debtor may transfer, sale, property related concealment and cases, the court may request of the interested party or according to the authority take attachment, seizure, freezing, shall be ordered to provide a guarantee of property preservation measures. The preserved property is the means of production, guarantee shall order the applicant to provide. Property preservation shall according to the nature of property preservation by appropriate means, as far as possible to reduce the impact on production and life, to avoid causing the loss of property.

19 of the first payment difficult lending case, the court judgment or mediation amortization. According to the payment capacity, determine the amount of each payment.

20 the implementation process, the two parties through consultation services to the debtor or other way of debt, does not violate the law, no harm to social interests and the interests of others, shall be permitted, and will implement the settlement agreement on record.

21At the execution not pay back the money, to other property to cover the debt, the enforcement applicant agrees, shall be permitted. The two sides can protocol pricing or ask the departments concerned to reasonable pricing, according to judgment amount will be the corresponding part of the enforcement applicant property delivery.

The person to be enforced to not pay back the money, bond, stock and other securities to cover the debt, the enforcement applicant agrees, shall be permitted; in other creditor debt, subject to the applicant for execution and notify the debtor to perform, go through the corresponding formalities for the transfer of creditor's rights.

22 the execution may be transferred, sold, hidden property to be executed, should take timely measures. Whom resist the implementation form obstruction of civil actions, in accordance with theThe Civil Procedure LawArticle 102nd,Article 227thThe provisions of.

 

 Attached: [Topic] borrowing other blog:

1,[case] asked a large cash IOUs, muddleheaded sentenced to return 40000000 loan (2011-12-20);

2,Notice of the Supreme Court "on hearing of folk loan disputes properly to promote economic development and maintain social stability."

And answer the reporter (2011-12-20);

3,Several opinions of the Supreme Court "on the people's court lending case" (2011-12-20);

4,The Zhejiang High Court "guiding opinions on Several Issues concerning the trial of cases of civil disputes borrowing" (2011-12-23)

Interpretation of new lawyers;

5,The Shanghai High Court "guiding opinions on Several Issues concerning the trial of folk lending case" (2011-12-27);

6,The Nanjing intermediate people's Court of "guiding opinions on Several Issues concerning the trial of cases of civil disputes borrowing" (2011-12-27);

7,The Chongqing High Court "guiding opinions on Several Issues concerning the trial of cases of civil disputes borrowing" (2011-12-29);