One borrowing at a time, two ends?Hidden cat greasy behind the private lending

Once the seemingly ordinary private loan is hidden behind it, the small loan company has collected "cutting" and "high interest" in disguise in the name of receiving consulting service fees such as consulting service fees, which not only disrupts the national financial order, but also damages the borrowing enterprise. rights and interests. After the Chongqing Procuratorate found the clues in the case, fully fulfilled the function of civil litigation supervision, prompting the re -trial and reform of the borrowing contract dispute of more than 10 million yuan in the target of more than 10 million yuan, effectively safeguarding the financial order and financial security, and also ensured the legitimate rights and interests of the loan enterprise. Essence

On July 15th, the Supreme People's Procuratorate released the 38th batch of guidance cases with the theme of civil -effective referee supervision. This borrowing contract dispute supervision case handled by Chongqing Procuratorate ranked among them and caused widespread concern.

There is another "threshold" for the loan

Borrowing, literally means "you borrow my money, I will return your principal and interest." As for interest, the highest interest rate standards stipulated by the state in accordance with the law cannot exceed the borrowing. However, in real life, some small loan companies set up another "threshold" to the loan regardless of legal regulations and collect high interest in disguise.

On November 23, 2012, in order to solve the financing problem, a real estate company in Chongqing (hereinafter referred to as "Real Estate Company") signed a clear and responsible "borrowing of money) with a small loan company (hereinafter referred to as" small loan company "). For the contract, the two parties agreed to the amount of borrowing at 13 million yuan, the borrowing period was 90 days, and the monthly interest rate of the loan was 1.5%... On the same day, the real estate company signed the "Consultation Service Agreement" with an information consulting service department. The two parties agreed that the information consulting service department assisted the loan business and provided consulting services for loan -related procedures. Once the financing was successful, the real estate company must pay the service fee of 780,000 yuan to the information consulting service department within the loan period, exceeding the first agreed loan period of the loan period for the first time The service fee is charged on a monthly basis, less than one month after one month, and the monthly consultation service fee is charged at 2%of the loan amount.

After signing the agreement of the contract and the information consulting service department, the loan of the real estate company was "smoothly". The small loan company paid 13 million yuan to the Real Estate Company, and the real estate company immediately transferred the consultation service fee of 455,000 yuan to Liu Mou, the person in charge of the information consulting service department. Since then, the Real Estate Company has paid more than 5.08 million yuan in interest and consulting service fees to small loan companies and information consulting service departments.

In June 2015, because the repayment was not available as scheduled, the small loan company would sue the Real Estate Company to the court to request a real estate company to repay the principal of 13 million yuan and overdue interest.

The Chongqing Yongchuan District Court heard that the "Loan Contract" signed by the small loan company and the real estate company was legal and valid. On October 31, 2016, the court's trial and resident company repaid the principal of 13 million yuan and interest of more than 1.42 million yuan in the small loan company. From March 21, 2015, the base loan benchmark for similar loans in the same period of the same period based The interest rate of interest rates is calculated until the interest of the principal paid. Both parties did not appeal, and the judgment of the first instance took effect.

Questions about the "consultation service fee"

"The information consulting service fee is not a one -time collection, but the monthly payment is paid, and it is directly related to the loan period. Is the charging of the information consulting service department be greasy?" In July 2020, at the Fifth Branch of the Chongqing Procuratorate (hereinafter referred to as When the "Five Divisions") When other cases were handled, Luo Haiping, director of the Procuratorate of the Procuratorate of Yongchuan District, discovered the issue in the dispute between the small loan company's loan company loan contract.

"Small loan companies may have the situation of avoiding industry supervision, disguised high interest, and disturbing the national financial order." After the preliminary investigation, Yongchuan District Procuratorate decided to launch the supervision process in accordance with its authority, and synchronize the case of the upper and lower integrated case handling models to the people of the Fifth Court of the Five Senches. The procuratorial department reported the case. Under the guidance of the deputy prosecutor, the two -level procuratorial organs immediately established a task force.

The case analysis of the case set up by the two -level procuratorial organs.

How to investigate in the absence of "snake"? How to dig out the facts as soon as possible? "Liu Mou, the person in charge of the information consulting service department, and the legal representative of the small loan company are relatives. It is suggested that Liu Mou can find breakthroughs, such as bank flow and transfer records." The task force determined the idea of ​​handling the case in the discussion. Essence

Based on this, the prosecutor handling the case first retracted more than 2,000 banks of Liu's banks from the bank and more than 500 transfers recorded by the bank. A number of flow data such as July 19, August 27, and September 20, 2012 quickly entered the sight of the prosecutor.

Unsurprisingly, Liu's account was really strange: After receiving the consultation fee of the Real Estate Company, Liu finally transferred the money to the account of a small loan company. The discovery of this key evidence opened the situation for the successful development of subsequent investigations.

"We infer that Liu's money transferred to a small loan company's account may be the interest collected by the small loan company in disguise, which was also confirmed when talking with the manager of the risk department of the small loan company. According to this manager The monthly interest rate is generally 2.8%to 3.3%, consisting of two parts, one is interest, and the other is the consultation fee. "At the case analysis meeting jointly held by the two -level procuratorial organs, the prosecutor handling the case sorted out the recent investigation situation. Essence

After analysis and judgment, the task force determined the next investigation direction, and then the troops were divided into two roads, while continuing to sort out, verify the financial details, bank flow and other materials; continued to ask Liu Mou, deputy general manager of the small loan company, accounting and other personnel, accounting, and other personnel. Essence "Why did the money you received transferred to the loan company account?"

"Please state truthfully, otherwise you must bear the corresponding legal responsibility."

Facing the inquiries of the prosecutor, Liu was also pretended to be calm at first, but in the face of conclusive evidence, his psychological line of defense finally collapsed, and all the facts and inscriptions were made: "I am the person in charge of the information consulting service department to help small loans to help small loans. The company charges the consultation fee, and the consultation fee is actually the interest received by the small loan company, so all the money I receive is transferred to the small loan company. "

It turned out that the information consulting service department was set up by a small loan company, and Liu was not only the head of the information consulting service department, but also a cashier for a small loan company. In fact, the information consulting service department has never provided any substantial services to the real estate company.

In addition, the prosecutor also consulted the financial voucher and other information of the small loan company, and found that when the small loan company made the account, the monthly payment was made into interest and consulting service fees. The annual interest rate of similar loans at the same time was only 6%.

After continuously drawing the cocoon, the prosecutor finally restored the entire process of collecting high interest in the disguise of the small loan company through the so -called "consulting fee". "In order to earn high interest, the small loan company set up a related company to engage in a set of people and horses, two brands" to collect the borrowing principal and high interest in disguise in the name of consulting fees and management fees. Hundreds of. "Luo Haiping said.

"Chopping" of "Hidden"

With the full linkage of the two -level procuratorial organs, the facts of the case have been verified clearly and the evidence chain has been complete. In September 2020, Yongchuan District Procuratorate submitted to the Five Branch to protest on the grounds that the original judgment was wrong. After the review of the Fifth Branch, the existing evidence is sufficient to prove that the consulting fee and service fee received from the information consulting service department nominal are actually interest received by the small loan company. High interest.

"The information consulting service department charges the consulting fee and the service fee is actually charging the" cutting interest "for the small loan company. According to relevant laws and regulations, this behavior is illegal and should be deducted from the actual amount." Official Xue Qifei said that the behavior of small loan companies and the information consulting service department disrupted the market economic order and financial order, harmed the public interests of social, and should be corrected. On October 26 of the same year, the Fifth Branch filed a protest to the Fifth Intermediate Court of Chongqing in accordance with the law. A few months later, the case was instructed to re -audit the court.

In the next retrial, the small loan company also recognized the fact that the procuratorate found.

In June 2021, the Yongchuan District Court adopted the prosecutor's response from the procuratorial organs, revoked the first trial judgment, and made a retrial judgment. According to the retrial judgment, the 455,000 yuan "cutting" received by the small loan company was deducted from the principal of the loan. The millions of yuan paid by the real estate company later was deducted as the principal and interest of the loan. After the re -judgment was made, the two parties did not appeal.

Substitute of Checking Procuratorate

Do a good job of "the second half of the article"

At this point, the suspension of this loan contract dispute was settled. However, the work of the procuratorial organs has not ended.

Prosecutors handling cases in Yongchuan District Procuratorate held a seminar.

In early July 2021, a special seminar of the People's Bank of China was held in the Yongchuan District Procuratorate. The deputy prosecutor of the two -level procuratorial organs, the heads of the procuratorial department of the Civil Bank, and the prosecutors all attended the scene. Everyone conducted analysis and discussion on how to do a good job in the "second half of the article" of the procuratorial case.

"As a non -banking financial institution, whether the loan interest rate is implemented in accordance with laws and regulations, it will not only involve the legitimate rights and interests of the borrower, but also affect the stability of the financial market order."

"This kind of disguised receipt of high interest is not a small number, and supervision should be strengthened. The procuratorial organs have the responsibility to urge the operating behavior of the small loan company through the issuance of procuratorial suggestions ..."

More than a month later, under the guidance of the Chongqing Procuratorate and the Five Branch, the Yongchuan District Procuratorate sent a detailed procuratorial suggestion to the district financial work office. It was suggested that it strictly regulates the loan behavior of small loan companies and urged the small loan company to follow the law. Operate in accordance with regulations, ensure that the actual loan interest rate meets the regulations, while improving the supervision and management mechanism, increasing the inspection of the implementation of the loan interest rate, strengthening the source governance, and maintaining the security and stability of the financial market.

After receiving the procuratorial suggestion, the unit attached great importance to studying and refining rectification measures carefully, and said in the reply to the procuratorate that the next step should be strengthened to strengthen the on -site inspection, improve the report and complaint mechanism, discover problems in time, actively urge the rectification to rectify the rectification , Will also ask relevant units to strengthen supervision and cooperation to effectively maintain the order of financial markets.

"For problems found in reports and supervision, we will interview the person in charge of the small loan company in a timely manner, strengthen policy preaching, and supervise the problem to rectify the whole process. Once the clues of illegal acts are found, it will be transferred to the judicial organs in time." Say.

In July of this year, the case was selected as the 38th batch of guidance cases of the Supreme Procuratorate. The person in charge of the Supreme Procuratorate of the Supreme Procuratorate said in the question of reporters that in this case, in the case of accurately reviewing a small loan company, there is a situation of avoiding industry supervision, high interest in disguise, and disrupting the national financial order. Case correction played a role in using points and enlarging legal effects. When applying similar cases, how to identify and supervise local financial organizations to issue loans in violation of regulations, further maintain normal transaction order, and purify the financial environment to play a guidance. "As a non -banking financial institution, small loan companies collect high interest in disguise. Procuratorate actively supervised according to its powers, protects the legitimate rights and interests of borrowers, safeguard the financial market order, and effectively puts procuratorial work into the hearts of the people! "Chongqing people's congress representative Zhouhe Jian, who has been paying attention to the progress of the case, praised.

"The borrowing behavior should not have hidden rules, and the loan company cannot rob the fire. For illegal lending, we insist on zero tolerance." Zhan Wenyu, secretary of the Party Group and Attorney General of the Procuratorate of Yongchuan District, said that in the future Maintain financial order and financial security in accordance with the law.

Perform duties in accordance with the law

Help to prevent and resolve financial risks

Financial affirming important functions such as financial communication, resource allocation, and structural adjustment is a key element established by my country's modern economic system. Financial risks are related to the economic development of the country and the security of the people's property. Procuratorates should actively perform their legal supervision functions, maintain financial order and financial security in accordance with the law, and help prevent and resolve financial risks.

In this case, in order to avoid supervision, small loan companies use their advantage in lending business to adopt illegal means such as pre -deduction borrowing principal and high interest in disguise to damage the legitimate rights and interests of borrowers and disrupt the financial market order. In order to protect the public interest, the procuratorial organs took the initiative to conduct civil litigation supervision in accordance with their duties, and provided vivid samples for improving the procuratorial organs to launch a civil litigation supervision mechanism in accordance with the law.

The behavior of a small loan company with a pre -deducted borrowing principal and disguised high interest is often hidden. Usually small loan companies and affiliated companies signed loan contracts and service contracts with borrowers. Different legal subjects. Without sufficient evidence, it is difficult for judicial organs to identify the service fee received by related companies is the high interest charged by small loan companies in disguise. Chongqing procuratorial organs have exerted the advantages of integrated case handling, make full use of the investigation and verification, and find out the truth. The prosecutors have made a group force, starting from the key personnel to find a breakthrough out of the case, retrieved accounting books, bank flow to clarify the capital direction, and the witness testimony of fixed small loan companies and related companies restores a small loan company to collect high in disguise through the evidence chain. The fact.

Correction cases are not the end of procuratorial supervision. Under the new situation, the procuratorial organs take litigation supervision as the main line, perform their duties in accordance with the law, and timely discover the prominent and trend problems in social governance. Social risks are prevented and curbed at the source. In response to the problems found in the case, the procuratorial organs issued procuratorial suggestions to the administrative department of a small loan company, which not only required a standard for a small loan company involved in the case, but also prompted financial risks. It is recommended to strengthen the supervision mechanism and increase inspection efforts. It was adopted by the administrative organs.

From the acceptance of the case, the investigation and verification, to the proposal to the prosecution of the prosecution, the upper and lower procuratorial organs coordinated to form a joint force, through precise supervision, and achieved the social effect of "handling a case and governing one", and made a good plan for the party committee and government to make a good plan to make a good plan for the party committee and government. Preventing financial risks contributed the procuratorial power. (Yang Ping, Secretary of the Party Group and Attorney General of the Fifth Branch of the Chongqing Procuratorate)

(Procuratorate Zhang Bo Peng Jing Huang Qilin)

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