Some opinions of the Supreme People's Court on the trial of folk lending case

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.

1 disputes between loans between citizens, between citizens and legal persons of lending disputes with other organizations and citizens of lending 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 the relevant provisions of review procedure of the civil procedural law of acceptance.

4 people's court review of borrowing the prosecution of the case, according to the provisions of the Civil Procedure Law Article 108th, should be required to provide the plaintiff written IOU; 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 not.

7 the lender shall not be included in the Jin Mou usurious interest. Creditors will interest into the principal interest that trial, 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 paragraph third of general principles of the civil law "on the implementation of < 134th and some problems of civil law of the people's Republic, 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 the general principles of the civil law are eighty-ninth second and the "opinion" (for Trial Implementation) the provisions of article 112nd, article 113, Article 114, Article 115, article 116 treatment.