I. Case analysis of private lending

1. This case occurred before the promulgation of the Supreme People's Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases in 2115, and the provisions at that time were applicable.

2. At that time, it was stipulated that interest rates that exceeded the bank loan interest rate by four times were not protected. Failure to protect does not mean that it is illegal. The defendant pays the monthly interest of 4% or 5% voluntarily, regardless of whether it is higher than 4 times of the bank loan interest rate. If it is not handled, it will be regarded as effective, and the defendant may not claim deduction or demand it back.

3. unpaid interest and principal. Unpaid interest is supported by 4 times the bank loan interest rate at that time, and the principal is refunded. In view of the fact that the plaintiff only advocates calculating interest according to the benchmark loan interest rate for the same period, it is not against the law for the parties to dispose of their rights, and our court supports it.

to sum up, the judgment is as follows: within 11 days after this judgment comes into effect, the defendant Chen Mou will return the loan principal of 7 million yuan; Pay interest of ×× yuan (calculated from ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× If the defendant fails to pay the principal and interest according to this judgment, he will be fined at twice the loan interest rate of the same period. ?

Second, private lending (the case is very complicated)

Is such a large sum of money important to you? You wouldn't have done it if it wasn't important, would you? But I feel that you are sick and disorderly. How can you ask questions online? Do you know what your people do? Do you know who it is? It can be said that as long as I know better than you, I can give you advice. But this kind of case is just a chance without a court, not to say that it is wrong this time and we will talk about it next time. Why don't you find an experienced person and only trust netizens when you are so professional and the money is not small? Does it lower your living standard to go to court and involve your own teacher fees? If you can't lower your living standard, you can just find a lawyer. Tell the lawyer about your situation in detail and see what the lawyer thinks. Don't think that lawyers can talk nonsense. Lawyers should be responsible. Will you give him money when it's not what he says? In addition, in this professional matter, it can be said that few people use your legal aid, and there are also caring lawyers who don't charge. If you are afraid of spending money, you can turn to the local media for help in introducing legal services. In short, anyone with life experience and mature thinking will not use your method. Because netizens can talk nonsense, anyway, you don't understand, and if you do, you won't come and ask. I suggest you not to maximize your interests.

third, the case of organizational lending?

private lending includes legal persons and natural persons, and some are called special legal persons, that is, the government or non-profit organizations. As the most grass-roots mass self-government organizations in China, there are also cases of private lending. If the village collective borrows money from the private sector for its own construction and development, how should it divide its responsibilities in case of insolvency or other circumstances? Today, according to the civil judgment of the intermediate people in Linyi City, Shandong Province on November 31, 2112, about the second instance of private lending by Zhu Moshi and Zhu Mozhang, this paper makes a brief analysis.

I. Basic information of the case and verdict

Facts ascertained in the first instance: Zhu Mouzhang and Zhu Mou are actually residents of Zhuhuangyu Village, Yushan Town, Linshu County, Zhu Mouzhang is the village accountant and Zhu Mou is the village branch secretary. From March 5, 2115 to April 2118, Zhu borrowed money from Zhu Mouzhang for many times, and both parties settled the account. In April 2118, Zhu actually issued two IOUs to Zhu Xiaozhang. The first debit note states: Today, Zhu has actually borrowed 24,911 yuan from Zhu's chapter in cash; The term is from April 2118 to April 2119; The second debit note stated that Zhu actually borrowed Zhu's cash of 14,811 yuan today; The term is from March 5, 2115 to March 5, 2119, and it is noted that it is borrowed from the village, 11,111 yuan plus interest of 4,811 yuan. Zhu Mouzhang stated that all the above loans were paid in cash, and admitted that Zhu had repaid the loan of RMB 13,111 after issuing the loan. The remaining loan of 26,711 yuan was urged by Zhu Mouzhang, but Zhu did not pay it off.

The first trial held that the fact that Zhu actually borrowed money from Zhu Xiaozhang was mutually corroborated by the IOU signed by him and the repayment fact, and that the loan had actually been delivered and the loan contract had come into effect, which was confirmed by the first trial. Zhu actually failed to repay the loan according to the agreed time in the IOU, so he should continue to perform the repayment obligation and pay off the remaining loan of 26,711 yuan. If no interest is stipulated in the IOU, it shall be deemed that no interest is paid. The date of Zhu's seal is the date when the grace period for Zhu to fulfill his obligations expires. Zhu Mouzhang claims that the loss of interest can be calculated at the annual interest rate of 6% from the date. The defendant Zhu refused to appear in court to participate in the lawsuit after being summoned by summons, which was regarded as giving up the right of defense and did not affect the judgment made by the first instance on the basis of the facts ascertained. Judgment of the first instance: the defendant Zhu actually returned the loan of 26,711 yuan and interest (based on 26,711 yuan, from April 29, 2121 to the actual payment date, calculated at the annual interest rate of 6%) to the plaintiff Zhu Xiaozhang within 11 days from the effective date of this judgment. The case acceptance fee of 468 yuan is halved to 234 yuan, which shall be borne by the defendant Zhu.

in the second trial, the parties did not submit new evidence.

The facts ascertained in the second trial are consistent with those ascertained in the original trial.

Our court believes that Article 91 of the Interpretation of the Supreme People on the Application of the Civil Procedure Law of the People's Republic of China stipulates that the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the other party's claims, except as otherwise provided by law. Before making a judgment, if the parties fail to provide evidence or the evidence is insufficient to prove their claims, the parties with the burden of proof shall bear the adverse consequences. Appellant Zhu Moushi claimed that the loan involved in the case had been repaid to Remo Yuan, the younger brother-in-law of Appellee Zhu Mouzhang, but Appellee Zhu Mouzhang refused to accept it, and Remo Yuan also explained in court that the 6,111 yuan was the other debts between Appellant Zhu Moushi and Remo Yuan, so this court did not support it. The appellant Zhu claimed that the loan involved was a village loan, but did not provide evidence to prove his claim, so our court did not support the appeal.

To sum up, Zhu's appeal is untenable and should be rejected; The judgment of first instance found that the facts were clear and the applicable law was correct and should be upheld. According to item 1, paragraph 1, Article 171 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

The appeal is dismissed and the original judgment is upheld.

ii. analysis of the main legal basis and practice of the judgment

1. the civil code regards government agencies, rural collective economic organizations, urban and rural cooperative economic organizations and grassroots mass autonomous organizations as special legal persons. This is also a key point in this case.

2. The appellant wanted to argue that he borrowed money for the village collective organization instead of himself, but in terms of the loan relationship, it was signed by both parties, only noting the village use, but there was no proof. Lack of strong evidence, if we advocate the collective organization to borrow money, then we should provide evidence that the village collective organization used the money, but we did not provide it, so we did not get the support.

3. According to the law, the village collective organization, as a special legal person, can carry out civil activities and bear civil liabilities. As the representative of the village collective, the village director can borrow money on behalf of the village collective organization, but the loan needs to be used for the village collective organization, otherwise it cannot be considered as a village collective loan.

4. another one, because there is no agreed interest, it is considered that interest will not be paid, but from the date, it will be settled according to the current bank interest rate until the loan is paid off, which is a loan between natural persons.

5. The interest agreement between natural persons in France is unclear, and the people will not support it if the lender claims to pay interest. Except for loans between natural persons, if the agreement between the borrower and the lender on the loan interest is unclear, and the lender claims interest, the people shall determine the interest according to the contents of the private loan contract and the local or the parties' trading methods, trading habits, market interest rates and other factors.

6. Interest is the reward for temporarily giving up the right to use money, and it is the compensation for the lender's commitment not to recover the lent money before a certain time. The interest rate is the ratio of interest to principal, and it is regarded as the price of money as a commodity. The real source of interest is the real growth of the economy.

7. If there is no agreed interest on the loan between natural persons or there is an agreement but the agreement is not clear, it is deemed that no interest is paid. Lenders and borrowers, including natural persons, non-financial institutions, legal persons or other organizations, and their mutual financing behavior, if there is no agreement on interest, the lender should not support it. Because, compared with natural persons, non-financial institutions, legal persons and other organizations are generally more capable of engaging in civil and commercial activities, preventing risks and judging market expectations. Enterprises are the best judges of their own interests. If they want to obtain interest, they should clearly stipulate in the loan contract. If there is no agreement, it is deemed that the lender has no intention to pursue interest or both parties have not reached an agreement to pay interest.

8. If only one of the lenders and borrowers is a natural person or both are non-financial institutions, legal persons or other organizations, if the interest agreement is unclear, it should be supplemented as a loophole in the contract in essence, and it should be handled according to the following order and standards:

9. According to Article 61 of the Contract Law, it can be determined according to the relevant provisions of the contract or trading habits. In addition, we should pay attention to three conditions for determining the interest standard by applying trading methods and trading habits: ① objectively speaking, it should be the usual practice adopted by the local or industry trading behavior; In terms of subjective conditions, the counterparty knows or should know, so as to strengthen the protection of the counterpart who does not understand local customs or lacks experience in the industry; (3) From the point of view of the time node of trading habits, it should be a customary practice that is known or should be known when concluding a contract.

11. if it is still uncertain according to article 61 of the contract law, the judgment shall be made according to article 62 of the contract law. That is, when the interest agreement between non-financial institutions as legal persons and other organizations is unclear, the interest can be calculated at the same loan interest rate of the commercial bank in the place where the contract is performed when the private loan contract is concluded.

11. In the case of "no agreed interest", two conditions must be met: the borrower and the lender dispute the fact that interest exists; Both parties have no evidence to prove their claims. Although there is the word "agreement", if there is no agreement on interest, it is difficult to form superior evidence, and its essence is still a state of no interest agreement.

12. If both parties have not agreed on the interest during the loan period, even if they have not agreed on the overdue interest, the lender can still demand the borrower to pay the overdue repayment interest. From the date when the loan is overdue to the date when it is paid off, the interest loss during the period when the loan is occupied by the borrower can be calculated with reference to the benchmark interest rate of similar loans of the People's Bank of China in the same period.

IV. Ten Cases of Private Lending

Private lending refers to lending between citizens, citizens and legal persons, and citizens and other organizations. Private lending is a direct financing channel and investment channel, and a form of private finance. As a financing method with abundant resources and simple operation, private lending has been developing continuously in the market economy, alleviating the contradiction of insufficient bank credit funds to some extent and promoting economic development. Below I have compiled ten cases of private lending for your reference.

Case 1 of Private Lending

Illegal lending is not protected

[ Case] On April 11, 2111, Wang set up a gambling lottery in his home in Ciyutuo Town, Liaozhong County, and Shen and others came to the Wang family to gamble. In gambling, Shen borrowed 41,111 yuan from Wang and signed the receipt, agreeing to repay the loan before April 5 of the same year. However, after the loan expired, after Wang repeatedly urged it, Shen just did not return it. Wang had to sue. Rejected Wang' s claim.

[ Judge's statement] Han Hua, presiding judge of the First People's Court, said: Wang set up a gambling lottery at home, knowing that Shen had lost money in gambling, but he still lent money to Shen to continue gambling, and his lending relationship was not protected by law.

[ Judge reminds] Legal civil rights are protected by law. If the lender still borrows money knowing that the borrower is engaged in illegal activities such as gambling, smuggling, buying and selling drugs or selling, it is illegal to borrow money, and its lending relationship is not protected by law.

Case 2 of Private Lending

The limitation of action cannot be exceeded

[ Case] During Wu Mou's tenure as the director of Dalama Township in xinmin city, he personally borrowed RMB 11,111 from the township government finance office on August 3, 1998, and agreed to repay it on October 1, with no interest. But Wu Mou hasn't paid it back since then. The township government arrived on February 27, 2112. Dismissed the township government lawsuit.

[ Judge's statement] Judge Zhao Menghui of the First People's Court: The township government has exceeded the two-year statute of limitations stipulated by law when claiming rights. Although the township government claimed that it had repeatedly urged for arrears, Wu Mou denied it, and the township government did not provide evidence to prove it. Therefore, the township government claims cannot be established.

[ Judge reminds] According to the general principles of China's civil law, the limitation period for requesting protection of civil rights from the people is two years, and the limitation period is counted from knowing or should know that the rights have been infringed. Private lending cases are subject to a two-year limitation period. Because some lenders don't know about this provision or because of their feelings, they don't want to hurt their feelings, and they don't promptly and effectively demand arrears within the effective period, so that the creditor's rights can't be realized. Therefore, the parties concerned should strengthen self-protection, pay attention to urging and timely repayment after the expiration of the repayment period, so as to protect their legitimate creditor's rights.

Case III of Private Lending

There is a limit on loan interest

[ Case] On August 4, 2113, Hu borrowed one million yuan from Ma. Both parties agreed that the loan interest rate would be calculated at 2 cents per month, and Hu should fulfill the repayment obligation before August 4, 2114. However, the principal and interest have never been repaid. Hu was sentenced to return the loan, and the interest was calculated at 4 times the bank loan interest rate during the loan period.

[ Judge's statement] Judge Zhao Zhi of the First People's Court: Because the loan interest agreed by both parties is four times higher than the loan interest rate of the People's Bank of China in the same period, the law does not protect the part that exceeds four times.

[ Judge reminds] In the private lending relationship, interest is the most likely contradiction between borrowers and borrowers. According to Article 6 of the Supreme People's Opinions on People's Trial of Lending Cases, the interest rate of private lending may be appropriately higher than the bank's interest rate, but it shall not exceed four times the bank's lending rate for the same period, and the excess interest shall not be protected. It also stipulates that the loan between citizens, the lender will include interest in the principal and compound interest, that is, "rolling interest", which is not protected. In addition, the first paragraph of Article 211 of the Contract Law stipulates that if the loan contract between natural persons does not stipulate or clearly stipulate the interest, it shall be regarded as not paying the interest. Therefore, in private lending, the agreement on interest must comply with the law and be clear.

Case 4 of Private Lending

It must be made clear that the borrower

[ case] Li is a villager in a village in Liaozhong County, and Wang, the director of the village committee, found him and borrowed 5,111 yuan, and issued an iou stating that the borrower was the director of the village committee. Later, Li asked Wang for money, and Wang asked him to go to the village Committee. Li asked the village Committee to return the loan but was rejected. Li took the village Committee to court. Rejected his claim.

[ Judge's statement] Judge Chen Guiyan of the First People's Court: Because the director of the village committee issued an iou without the official seal of the village committee, his behavior was off-duty, and it was obviously inappropriate for Li to sue the village committee.

[ Judge reminds] The lender should find out whether the other party borrows money as a natural person or performs his duties as a post to confirm the borrower. What needs to be reminded is that if the borrower is a legal person and is stamped with the official seal of the unit, the lender should sue his unit in the lawsuit.