Civil Lending Appeal 1 Appellant (defendant in the original trial) is a real estate development company in Guizhou, whose domicile is a village in Songshan Town, Ziyun Autonomous County, Guizhou Province.
Legal Representative Huang, position: general manager.
Appellee (plaintiff in the original trial) Zeng, male, Han nationality, was born on February 26th, 65438, with a high education level.
Defendant Liu, male, Han nationality, born in February+June, 65438.
The appellant refuses to accept the civil judgment (20xx) Linshui MinchuziNo. 1978 made by the People's Court of Linshui County on the case of private lending dispute with the appellee, and now appeals according to law.
Appeal request:
1. Request to cancel the first item of the civil judgment of (20xx) Linshui Minchuzi No.1. According to law1978;
2. The judgment rejected the appellee's claim against the appellant;
3. The litigation costs of the first and second trials shall be borne by the appellee.
Facts and reasons
First, the court of first instance found the facts wrong.
The appellant and the appellee did not form a loan relationship, and the loan in this case has nothing to do with the appellant.
First of all, from the complaint filed by the appellee to the court of first instance, it can be seen that the appellee sued Liu, not the appellant, but added the appellant in the course of the proceedings, and from the reasons for adding the appellant, it can be seen that Liu did not hook up with the appellant when he formed the loan relationship, but was later identified as a legal person debt in the proceedings.
In addition, judging from the claims, facts and reasons stated in his complaint, Liu needed funds to borrow from the appellee for the project construction, and issued an iou. After the loan, Liu had no trace to find, and the appellee failed to make an inquiry, so he filed a lawsuit and demanded Liu to repay the loan.
Facts and reasons are the expression of the appellee's true meaning, and facts are the appellee's own admission.
Therefore, the loan in this case was considered by the Appellee as the loan relationship between the Appellee and Liu.
Secondly, from the account of transfer, the appellee's four transfers were all Liu's personal account, and none of the money was transferred to the appellant's account; Moreover, from the form of receiving loans, if the company personnel receive money in their own name, they should have the appellant's power of attorney.
Therefore, neither form nor content can reflect the loan relationship between the appellant and the appellee.
Third, the seal stamped on the iou in this case does not reflect the loan relationship between the appellant and the appellee.
Judging from the paper of the loan, it is the stationery of the legal service office, and another person wrote the phone number of the Liu couple. It can be seen that the appellee has professional guidance when writing IOUs. If it is a legal person debt, its professionals should ask for the identity certificate and power of attorney of the legal representative. In fact, none of these elements are available.
Moreover, the seal stamped on the IOU is not the seal used by the appellant, but the seal used by the appellant on September 19, 20xx is the coded seal filed by the public security organ.
It can be seen that the IOU in this case should reflect the personal loan relationship between the Appellee and Liu, and has nothing to do with the Appellant.
Fourthly, it can be seen from Liu's defense opinion that he has left a real estate development company in Guizhou since February 20xx, and no longer participates in the daily operation and management of a real estate development company in Guizhou, that is, he no longer carries out civil and commercial activities on behalf of an enterprise as a legal person.
At the same time, it shows that he actually lent the appellee 562,500 yuan for the investment of Chengdu project, not for the operation and management of a real estate development company in Guizhou.
After leaving the job, he never provided any business license, contract and other related procedures of the appellant.
The appellee provided the court with the appellant's business license and organization code certificate, the source of which was very suspicious.
It can be seen that the loan in this case is actually that Liu borrowed 562,500 yuan from the appellee (transfer 525,000 yuan, cash 37,500 yuan) to invest in his own Chengdu project, and the remaining 437,500 yuan belongs to high interest rate.
The loan in this case has nothing to do with the appellant.
Second, because the appellant is at fault, the appellant is not the debtor of the loan in this case and has no obligation to return the loan. Of course, the provisions of Article 84 and Article 108 of the General Principles of Civil Law cannot be applied, and it is obviously an error of applicable law to judge the appellant to return the loan principal and interest.
To sum up, the court of first instance found that the facts were unclear and the applicable law was wrong, and requested the court of second instance to revise the judgment according to law to safeguard the appellant's legitimate rights and interests.
Appeal:
Xx，xx，XX，XX
Appellant (defendant in the original trial): xxx, male, Han nationality, born on 1xx, living in Room xx, xx Street, xx County, XX City, Guangdong Province, with ID number of 440xx.
Tel: 135xxx.
Appellee (plaintiff in the original trial): xx, male, Han nationality, 19xx, born and living. Xx Road, xx Street, xx County, Guangdong Province.
The appellant refuses to accept the civil judgment of the people's court of xx County, Guangdong Province (20xx) Fa Min Chu Zi No.7, and now appeals.
Appeal request:
1. Request to cancel the judgments of the people's court of xx County, Guangdong Province, namely, Minchuzi No.7 and Minchuzi No.7, and reject the appellee's claim against the appellant;
2. The costs of the first and second trial of this case shall be borne by the appellee.
Facts and reasons:
1. The judgment of first instance failed to find out the fundamental fact that the Appellee did not actually pay the loan to the Appellee, and the Appellee forced the Appellee to write an IOU:
(1) The appellee claimed in the lawsuit that "the defendant Huang xx didn't know about the loan" (see the penultimate line on page 1 of the first-instance judgment 1, etc. ), but the only evidence "IOU" submitted by the Appellee is Huang xx! This is enough to show that the IOU is invalid:
Article 74 of the Supreme People's Court's Provisions on Evidence in Civil Litigation stipulates: "In the course of litigation, the people's court shall confirm the facts unfavorable to the parties and the evidence recognized by the parties in the indictment, defense, statement and agent's statement.
Therefore, judging from the appellee's statement, the fact that "the defendant Huang xx didn't know about the loan" has been formed! Ironically, the only evidence "IOU" sued by the Appellant in this case has Huang xx's signature.
Is it reasonable for the Appellee to forcibly go to the Appellant's house and ask Huang xx to sign and confirm the loan facts while knowing that Huang xx didn't know the loan facts? Is it legal? This behavior should attract the attention of the court of first instance and serve as an important detail to judge whether the IOU is valid or not.
(2) After the Appellant reported a written IOU due to coercion, the public security organ made a second inquiry record of the Appellee as the father-in-law xxxx of this case (time: 20xx March 6), and xx (another case dispute with the Appellant) went to the Appellant's home.
And we left Huang xx's house from "1 October 7 and 8 at 20xx 1 18 o'clock, xx, and it was1o'clock the next morning".
Judging from this statement of xx, they stayed at the appellant's home for at least 8 hours, and finally got the appellant's wife (defendant in the first instance) Huang xx to sign the IOU without the appellant's knowledge! This fact of forcing others to write IOUs has been formed.
The witnesses present at that time provided testimony, and the interrogation record of the public security organ further confirmed the fact that the appellee threatened the appellant and Huang xx wrote an iou.
However, it is very disappointing that the key facts of the case involved in the first instance did not explain the reasons for accepting or not accepting the letter.
(3) It is really puzzling that the appellee and the appellant are strangers, but they can "borrow" money from the appellee: it is unreasonable and even more unrealistic from the perspective of the appellee's defense, or from the perspective of the appellee xx's defense in another case.
(4) When the Appellee only provided a very flawed "IOU" as evidence, and its statement was obviously contradictory (such as fabricating that the Appellant's wife and younger brother were in urgent need of money for medical treatment, etc.). ), and the appellee has reported to the police, coerced witnesses to testify, completely unknown to the appellee, in good economic condition, and has no motivation to borrow money.
The court of first instance should carefully examine all kinds of evidence behind the IOUs and solve the mystery that the appellee tried to "cover up the illegal purpose in a legal form" (forced IOUs):
1. Provisions of relevant local authorities in China on the trial of private lending cases:
(1) Article 17 of the Guiding Opinions of Zhejiang Higher People's Court on Several Issues Concerning the Trial of Private Lending Disputes (Zhejiang Gaofa [20xx] No.297) stipulates: "For loans delivered in cash, creditors only sue with the loan evidence, and there is no need to provide payment vouchers.
If the debtor raises a reasonable objection to the payment, the court may require the lender himself, the legal person or the relevant handling personnel of other organizations to appear in court and state the specific facts such as the reason, time, place, source and use of the cash payment. The xxxxxx court shall, according to the size of the cash payment,
Factors such as the lender's ability to pay, local or inter-party transaction methods, trading habits and the close relationship between borrowers and lenders, combined with the parties' own statements, oral arguments in court and other indirect evidence provided, based on the standard of proof of high probability in civil litigation, using logical reasoning and common sense in daily life, etc., comprehensively examine and judge whether the fact of borrowing and lending really occurs xxxxxx. "
Article 29 stipulates: "If the court finds any of the following circumstances in the trial, it shall strictly examine the facts such as the reason, time, place, source of the money, mode of delivery, destination of the money and the economic situation of both borrowers and lenders: xxxxxx.
(2) The facts or reasons of the loan sued by the plaintiff are unreasonable, and there is no iou or the iou may be forged; (3) The defendant was involved in the private lending dispute lawsuit xxxxxx for many times in a certain period of time ".
② Article 2 of the Opinions of Shanghai Higher People's Court on Trial of Disputes over Private Lending Contracts (Gao Hu Faminyi [2007]18) stipulates: "If xxxxxx has no other relevant evidence except IOUs, it shall judge whether the claims of the parties can be established by examining the creditor's own economic strength, the relationship between the creditor and the debtor, the trading habits and the testimony of relevant witnesses, and the IOUs alone are not enough to prove the fact of payment".
③ Article 8 of the Guiding Opinions of Chongqing Higher People's Court on Several Issues Concerning the Trial of Private Lending Disputes stipulates: "xx, the lender shall provide evidence to prove the payment method.
If the lender declares that the payment method is cash delivery, the people's court shall make a comprehensive review and judgment based on the statements of the parties, the amount of cash delivery, the lender's ability to pay, trading habits and other factors. "
2. It should be noted here that although the above-mentioned guiding opinions of the Third High Court are not directly applicable in Guangdong Province, they should still have certain guiding significance for similar cases of private lending in People's Republic of China (PRC)!
However, the court of first instance simply ignored these successful experiences and general provisions in the trial of private lending cases in China, ignored many antagonistic evidences put forward by the appellant and Huang yu zhen in the first instance, and failed to examine the burden of proof, sources of funds, trading habits, contradictory statements of lenders, trading occasions, monetary characteristics, emotional factors of both parties and many other aspects.
The appellee was very disappointed that he recognized the relationship between creditor's rights and debts with only one IOU.
(5) The evidence submitted by the Appellant in the first instance fully confirmed the invalidity of the IOUs. However, for the appellant's evidence (including the contradictory IOUs that the appellee could not establish), the court of first instance did not explain the reasons for accepting or rejecting the IOUs, which was extremely wrong.
Article 79 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings stipulates that "the people's court shall specify the reasons for the admissibility of evidence in the judgment documents".
However, judging from the judgment of the first instance, there is no evidence favorable to the appellant, such as witness testimony, the appellee's statement, and the transcript of the public security organ. , leading to a wrong judgment.
Second, the procedure of first instance is seriously illegal and should be corrected:
Article 52 of the Civil Procedure Law stipulates: "If one party or both parties have two or more persons with the same object of action or the same object of action, the people's court thinks that they can be tried together, and if the parties agree, it is the same lawsuit."
However, the court of first instance tried this case together with other cases (case number: Minchuzi No.7 and Minchuzi No.8): the litigation objects of these cases are obviously different, which obviously violates this legal provision; To say the least, even if the court of first instance thinks that it is the same kind, it should take "consent of the parties" as the premise of joint trial.
Third, the application of law in the first-instance judgment is obviously wrong:
1. The original judgment failed to determine that the appellee's IOU was invalid according to the provisions of the Supreme People's Court's Several Provisions on Evidence in Civil Proceedings, the Contract Law and the Law on Public Security Administration Punishment;
At the same time, the Notice of the Supreme People's Court on Properly Handling Private Lending Cases in accordance with the Law to Promote Economic Development and Maintain Social Stability has not been effectively combined with the experienced guiding opinions of various places in China's judicial practice (such as the above-mentioned guiding opinions of Chongqing, Zhejiang and Shanghai Higher People's Courts on several issues concerning the trial of private lending disputes) to find out whether there is a fact of borrowing money and whether there is coercion in borrowing money.
2. The conclusion that the appellant paid interest in the original trial (four times the interest of bank loans in the same period) was very wrong: to take 10,000 steps back, even for private loans, in the case that the two sides did not agree on interest or the interest agreement was unclear,
According to the first paragraph of Article 211 of the Contract Law of People's Republic of China (PRC), "If there is no agreement or unclear agreement on the payment of interest in the loan contract between natural persons, it shall be regarded as not paying interest". The so-called interest "agreement" in the original IOU was actually signed by the borrower, which shows that it does not conform to the formal characteristics of IOU and reflects the fact that it was coerced into conclusion.