The Anhui Provincial Higher People's court

Civil judgment

(2012) the final word no. 155th people two

The appellant (defendant in the original instance): Anhui Construction Engineering Group Co., Ltd.

Appellee (the plaintiff): Li Xiaomeng

Appellee (defendant in the original instance): Liu Daozhong

The appellant Anhui Construction Engineering Group Co., Ltd. (Anhui Construction Engineering Group) and the appellee, Li Xiaomeng Liu Daozhong folk lending dispute case, the Anhui province Suzhou City Intermediate People's court made in March 19, 2012 (2011) Jukunaka Minji at the beginning of the word no. forty-sixth civil judgment, and appealed to the hospital. The court, a collegial panel, in September 6, 2012 held a public hearing of the case. The appellant Anhui Construction Engineering Group entrusted agent Wang Yong, Li Xiaomeng and Chen Xue, the appellee appellee attorney agent Mei Weimin, Liu Daozhong attended the court proceedings. Now the trial has been closed.

The trial court found: Anhui construction engineering group of Anhui Construction Engineering Group, Grand View Garden, home of the world D district two tenders for the construction project of Anhui province Wanbei Coal Heng Xin real estate development company limited development of Grand View Garden, No. two Jia Tianxia D area project (the project). The project department Li Xiaomeng repeatedly to borrowing, which in March 25, 2010 which stated: "borrowed from the Li Xiaomeng 100000 yuan, pay the steel section"; March 26, 2010 stated: "I borrowed from Li Xiaomeng 300000 yuan, purchase of steel"; April 5, 2010 stated: "I borrowed from Xiao Meng Lee 100000 yuan, purchase of steel"; the August 7, 2010 loan stated: "borrowed from the Li Xiaomeng 100000 yuan, pay a concrete"; August 9, 2010 stated: "I borrowed from Li Xiaomeng 200000 yuan, pay sands"; October 10, 2010 stated: "I borrowed from Li Xiao adorable cash 100000 yuan, pay Zhang Tao wages". The IOU "borrowers" are stamped with the official seal and project department, project Department of materials member of Liu Daozhong's signature. From June 5, 2011 to June 25, 2011, the parties are involved in the loan interest monthly interest rate of 3% for the settlement, of which 100000 yuan loan from March 25, 2010 to June 25, 2011 March 25, 2010 settlement; 300000 yuan loan from March 26, 2010 to March 26, 2011 March 26, 2010 settlement; 100000 yuan loan since April 5, 2010 to June 5, 2011 April 5, 2010 calculation; 100000 yuan loans in August 7, 2010 from August 7, 2010 to June 7, 2011 200000 yuan settlement; borrowing since August 9, 2010 to June 9, 2011 August 9, 2010 settlement; October 10, 2010 100000 yuan loans since October 10, 2010 settlement to June 10, 2011. Liu Daozhong in the IOU written in interest settlement after calculation of interest, interest rate is still 3% of the monthly. Terms agreed interest without the project department official seal. The August 27, 2011 loan specified: "borrowed from the Li Xiaomeng Lu Waner Qian Yuan rmb". The IOU "borrowers" project department official seal stamped, and Liu Daozhong's signature, but it does not specify a loan interest. Before the 162000 yuan has been settled but unpaid interest. About Li Xiaomeng advocate interest, calculated according to the interest agreed IOU, the results of more than 109133 yuan Li Xiaomeng argued, the higher part, Li Xiaomeng said to give up.

The trial court held that: first, with regard to the case of the borrower is Liu Daozhong or Anhui Construction Engineering Group problem. Anhui construction engineering group think, the project Department seal kept by hand, it never in any IOU with a seal, the project department official seal affixed to a real object, and submitted to Wu Jian instructions and commitment to prove. In this regard, Wu Jian Department of project department official custodian, letter of commitment within the Anhui construction group have a stake in the agreement, and the Anhui construction group. The evidence is not alone as the facts of the case evidence. Anhui Construction Engineering Group, although the IOU seal authenticity demur, but did not provide the corresponding evidence, also did not apply for the identification of. On the claim, not support. Liu Daozhong Department of Project Department of materials, materials, etc. the payment in the name of the project department to Li Xiaomeng borrowing, which built the project department official seal. Therefore, the borrower in the loan project department. Two, about whether a specified in the interest of Anhui construction engineering group binding problem. Anhui construction engineering group think, IOU interest clauses in place without the project department official, the interest of individual behavior system agreed Liu daozhong, it should not bear the responsibility. In this regard, the project department issued to Li Xiaomeng Liu Daozhong in the IOU stamped seal, show its authorized Liu Daozhong on behalf of the company to borrow Li Xiaomeng. In issue IOU, Liu Daozhong and Li Xiaomeng on the loan contract interest. Though not the official seal, but in the prosecution of former project ministry did not inform Li Xiaomeng of termination of the authorization of Liu Daozhong. Therefore, Liu Daozhong's behavior is a representative project department behavior. The terms of the agreement in the interest of IOU of Anhui Construction Engineering Group binding. Three, about the interest of the loan should be the problem of how to calculate the. Anhui Construction Engineering Group to the loan contract interest rates too high objection. Methods the loan interest calculation, whether before or after the settlement interest settlement, for a monthly interest rate of 3%, higher than 4 times during the same period Chinese released by the people's Bank of interest rate of bank loans. "The Supreme People's court opinions" about people's court lending case the provisions of article sixth "borrowing rate can be higher than bank interest rates, but the maximum shall not exceed 4 times the same bank loan interest rate. Beyond this limit, the excess interest is not protected; "seventh rules" the 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 is not protected". The loan balance sheet date beyond released by the people's Bank of China during the same period the bank loan interest rate 4 times, Xiao Meng Lee said to give up, endorsed. The requirements of 900000 yuan from the settlement date of 4 times to pay the date by the bank loan interest rates, support in accordance with the law. The loan lending date to the settlement date of interest (by 3% to 336000 yuan monthly calculation). 4 times calculated according to the people's Bank of China released during the same period the interest rate of bank loans, the loans from lending date to the repayment date of interest is 215396.7 yuan. The above 336000 yuan in excess 215396.7 yuan, 120603.3 yuan, not protect, should be returned. The interest is not paid to the settlement to pay 162000 yuan, the project department is less interest 41396.7 yuan (162000 yuan -120603.3 yuan). Therefore, Li Xiaomeng demanded repayment of interest 162000 yuan unpaid, for which 41396.7 yuan, support in accordance with the law; the remaining part, does not support. The unpaid interest, should not calculate interest. The requirements of 162000 yuan from the prosecution date until the date of payment made by the people's Bank China published during the same period the bank loan interest rate of interest, in accordance with the law shall not support.

To sum up, in addition to the loan contract agreed interest rate, are effective. Due to the project department does not have the qualification of independent legal person, the legal consequences of the contract should be established that the Anhui construction group bear. So Li Xiaomeng asked the Anhui Construction Engineering Group to pay 900000 yuan loan litigation request, to support the requirements in accordance with the law; Li Xiaomeng of Anhui Construction Engineering Group to pay 162000 yuan interest, for which 41396.7 yuan, to support the requirements in accordance with the law; Li Xiaomeng of Anhui Construction Engineering Group to pay 900000 yuan from the settlement date to the date of payment of interest (4 times computation published by the people's Bank of China during the same period the interest rate of bank loans) litigation request, to support the requirements in accordance with the law; Li Xiaomeng of Anhui Construction Engineering Group to pay 162000 yuan from prosecution date until settlement date of interest (published by the people's Bank China period similar to bank lending rates) litigation request, in accordance with the law shall not support. Because Liu Daozhong is not involved in the loan and interest of the borrower, so Li Xiaomeng asked Liu Daozhong to bear the liability for the loan and interest litigation request, in accordance with the law shall not support. In accordance with the "contract law" article fifty-second of the people's Republic of China (five), fifty-sixth, 205th, 206th, "the Supreme People's Court on the trial lending case several opinions" article sixth, article seventh, "the people's Republic of China Civil Procedure Law" the 128th regulation, decision: one, Anhui Construction Engineering Group for the decision within 10 days after the commencement of Li Xiaomeng repay the loan principal of 900000 yuan, 41396.7 yuan of interest; two, the Anhui Construction Group in the verdict within 10 days after the payment of 900000 yuan to Li Xiaomeng principal specified judgment from the settlement date of expiration date of interest (4 times computation, published according to the people's Bank of Chinese during the same period the interest rate of bank loans 100000 yuan in April 5, 2010 since June 5, 2011 to decision specified expiration date; August 7, 2010 100000 yuan since June 7, 2011 to decision specified expiration date; August 9, 2010 200000 yuan since June 9, 2011 to decision specified expiration date; 100000 yuan in October 10, 2010 since June 10, 2011 to specified judgment performance period Expiry date; March 25, 2010 100000 yuan since June 25, 2011 to decision specified expiration date; March 26, 2010 300000 yuan since June 26, 2011 to decision specified expiration date); three, Li Xiaomeng rejected the request of other proceedings. A trial of the case acceptance fee of 15330 yuan, the property preservation fee 5000 yuan, total 20330 yuan, the burden of 2309 yuan Li Xiaomeng, Anhui construction group, the burden of 18021 yuan.

Anhui Construction Engineering Group refuses to accept the trial court the verdict, the appeal to say: 1, this is a case of money between natural persons. Li Xiaomeng submitted the bill per capita borrowing for Liu Daozhong, and Liu Daozhong as the project department to hire materials, neither the project department project manager, nor by the Anhui construction group or project department authorized, therefore, their borrowing behavior not perform their duties behavior, nor does it constitute the apparent agency. In addition, a number of which Li Xiaomeng submitted the traces have a large number of add, modify, the authenticity of the evidence in question, should not be accepted. 2, in accordance with the management of the project Department seal, in the absence of the establishment of unit explicit permission, the project was not in its own name for materials and equipment procurement, provides the guarantee contract, civil legal acts, can not be independently bear civil liability, the use of Project Department seal is also limited to engineering data and visa program the data. The project department and a seal is Liu Daozhong after stealing cover, can not be identified as Anhui Construction Engineering Group for their borrowing behavior of ratification. In addition, Li Xiaomeng knew that Liu Daozhong was in the loan project department an ordinary materials, without the Anhui construction engineering group or project authorization, still in cash to lend, the existence of the fault. 3, the IOU agreed interest and Anhui construction engineering group. Even if borrowing behavior effectively, first of all, Liu Daozhong Li Xiaomeng did not agreed to loan interest, interest is added after the iou. Secondly, the interest is important matters shall be made by agreement, Anhui construction engineering group or project department and Li Xiaomeng to reach a supplementary agreement or otherwise authorized to Liu Daozhong, but the Anhui Construction Engineering Group is not authorized Liu Daozhong to borrow, nor authorized with the Li Xiaomeng contract interest rate, and the interest of the Project Department seal agreed not. In addition, Liu Daozhong and Li Xiaomeng agreed that interest rates are too high, significant damage to Anhui construction engineering group interests, the contract is invalid. The judgment that the loan lent to the settlement date of interest 215396.7 yuan have no basis in fact. Request the second instance court for revocation of the original judgment, rejected Li Xiaomeng's claim, a second trial, litigation costs from the Li Xiaomeng, Liu Daozhong burden.

Li Xiaomeng in court argued that: 1, which are the project Department of the seal, the borrower is the project department, Liu Daozhong is handling, use of the loan is paid for project materials, and other costs, the staff of project department stamp is that. The project Department seal use management regulations of Anhui Construction Engineering Group internal regulations, the foreign invalid. The behavior of the borrowing is done in the project department, borrowing talks that uses the loan for the duration of the construction is needed, the project Department seal itself enough to explain its authorized Liu Daozhong borrowing, and project Department seal is many people know the fact, about borrowing also has many people, Anhui Construction Engineering Group Statement seal is the lack of evidence of theft cover. 2, the interest is legal fruits, node information is private lending activities within the normal range, compared with the main debt, does not belong to the important matters, without the authorization of Anhui construction engineering group. And both parties of interest calculation standard and settlement time has been agreed in the loan, but later in the IOU to add. To sum up, the original judgment was correct, should be maintained.

Liu Daozhong in court argued: case involving borrowing is not Liu Daozhong personal loans, but in Anhui Construction Engineering Group is not funding situation, the Department for the project construction project successfully completed and borrowing, Liu Daozhong just attn. I owe you on the seal, three project department jointly agreed the stamping, borrowed money are used for concrete, sand and other building materials purchase project, interest on the loan is the loan is expressly agreed, so by the Anhui construction group responsibility for repayment.

Second, the Anhui construction group, Li Xiaomeng did not submit new evidence.

Liu Daozhong submitted the following evidence: 1, Wanbei Coal Heng Xin real estate development company limited to the Anhui Construction Engineering Group issued a "letter". Proof: the project funds the operation difficult, developers urged the Anhui Construction Engineering Group to give financial support. Book 2, steel supply agreement signed in November 2, 2009 by Zhao Xinjin and project department "". Proof: construction project shall be the purchase of steel. For the payment of the steel section, Liu Daozhong to loan. 3, October 8, 2009 Suzhou Juyi concrete limited company and the project department signed the "Suzhou Juyi concrete sales contract". Proof: Liu Daozhong on behalf of the project department to sign the contract, the purchase of concrete, for the payment, after Liu Daozhong to loan. 4, March 14, 2011 Hebei Shen Jinda cable limited company and the project department signed the "purchase contract" of industrial products. Proof: Liu Daozhong on behalf of the project department signed a contract to purchase cable, Liu Daozhong is responsible for one of the project department. 5, Suzhou City, Qidong Jin Yuan new building materials limited company and the project department in March 10, 2010 signed the "contract", in March 12, 2010 signed the "supplementary agreement". Proof: Liu Daozhong on behalf of the project department signed a contract to buy sintered brick. 6, Zhao Xinjin issued the "receipt" three Zhang, Suzhou Juyi concrete limited company issued a statement for two, sand issued by suppliers "receipt", Zhang Feng issued a "IOU" (actually a receipt), Zhang Tao issued "IOU" (actually a receipt). Proof: Liu Daozhong was to Li Xiaomeng's borrowings are used for the payment of engineering materials, two digital basic agreement. 7, "out card" two. Proof: Liu Daozhong is head of the project, to out perform the procedures of signing certificate. 8, the Suzhou Grand View Garden No. 4, No. 5, No. 7, No. 8, 9 floor leakage repair scheme. Proof: Liu Daozhong is one of the person in charge of the project department. 9, "Anhui construction engineering group of domestic engineering company seals management responsibility for the book", "commitment". Proof: the project department conscientiously fulfill the responsibilities.

Anhui construction engineering group examination opinions are as follows: 1 formal workers, Liu Daozhong is not the Anhui construction group project department, only temporary materials, it has the right to sign the purchase contract, does not mean the right to foreign borrowing. 2, the interest on a loan is not a loan when both sides agreed, no seal, Anhui Construction Engineering Group is not authorized to Liu Daozhong.

Li Xiaomeng interrogation opinions are as follows: the authenticity, legitimacy, relevance of evidence of 1-8 were recognized, can prove that the project department in the project construction fund shortage in the process, Liu Daozhong handles the loan for project construction. For the authenticity, legality of evidence 9 no objection, but not recognized for its relevance, the rule is an internal regulations, foreign non binding.

The court reviewed that the evidence submitted: for Liu Daozhong, the Anhui construction group recognized Liu Daozhong Department of project materials, Li Xiaomeng on the authenticity of the not dissent, purchase and sales contract and related receipts, and Liu Daozhong submitted the bill can be confirmed with each other, so the evidence submitted by the court be identified.

The court trial to confirm the court found the facts.

This house believes that: according to the parties to the plea opinions, the second instance of this case the focus of controversy is: subject should bear the responsibility for repayment, in the case of Anhui construction group or Liu Daozhong; two, case involving the interest on a loan should be how to determine. The analysis identified as follows:

On the controversy focus. Li Xiaomeng submitted the ious are Liu Daozhong's signature and seal of the project department, in addition to August 27, 2011 the bill (162000 yuan of the bill has been settled but unpaid interest) are indicated by borrowing purposes, the purchase contract and the supplier of this and Liu Daozhong submitted the receipt, receipt of bills, each other confirm, and borrowing period, amount and payment time, amount is consistent. It can be proved that, for the completion of construction materials, such as pay, Liu Daozhong to the project name to Li Xiaomeng and issue IOUs borrowing, borrowing behavior should be identified as acts of duty, Liu Daozhong handles the loan should be identified as the project department borrowed. Anhui construction engineering group think IOU Project Department seal is Liu Daozhong steal the cover, but there is no evidence to prove, the court shall not accept. Because of the temporary organization established in the project Department of Anhui construction group, can not be independently bear civil liability, so Anhui Construction Engineering Group to assume the responsibility to repay the loan project department. Anhui construction engineering group the case involving Liu Daozhong and Li Xiaomeng between loan personal loan not tenable.

A two focus of controversy. The bill submitted in Li Xiaomeng (except August 27, 2011) indicate the interest settlement date and rate agreed, and Liu Daozhong's signature, should be identified, both sides of the interest on the loan part of the agreement, the Anhui construction engineering group that no contract interest loans, should not pay interest claim shall not be supported. On the other, Anhui construction group, the appeal, the loan contract is not agreed repayment period, interest claims from creditors claim that the date, this, from both sides recorded in the bill "interest has to date," can be seen on both sides of the payment of interest on the time a clear agreement, so that each of the original judgment loans from lending date of interest, and the interest rate shall be adjusted, there is no improper.

To sum up, Anhui construction engineering group of the grounds of appeal can not be established, does not support the appeal. The trial court finds that the facts are clear, the applicable law is correct, in accordance with the law shall be maintained. Accordingly, the provisions in accordance with the "PRC Civil Procedure Law" the 153rd paragraph 1, the decision as follows:

Dismiss the appeal, upheld the.

The second case acceptance fee of $15330, by the Anhui Construction Group Co., Ltd. burden.

This judgment is the final judgment.

The trialSentencedLongZhang Suqin

Acting judgeWang Wenyou

Acting judgeLv Weiwei

Two 0 one or two years in October 8th

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