Is it valid for professional lending? Is the agreed high interest?The court made a judgment ...

Basic case

On February 22, 2014, the borrower Gan Mouxin, Wei Mouwen, and Huang Moubin turned to the borrower Xie Mouwei because of the funds weeks and issued a "debit".

The borrowing article mainly stipulates that the borrower Gan Mouxin, Wei Mouwen, and Huang Moubin borrowed 660,000 yuan from the borrower Xie Mouwei; Huang's cooperation signs the guarantor on the debit. On the same day, the borrower Xie Mouwei paid the 500,000 yuan borrowing to one of the borrowers Huang Moubin, and paid 100,000 yuan borrowing to the guarantor Huang Mouhe. After the loan, the borrower Gan Mouxin, Wei Mouwen, and Huang Moubin came to the borrower Xie Mouwei to return the loan of 300,000 yuan on April 24, 2014.

Focus

1. Whether the borrowing relationship between the two parties in this case is legal and valid;

2. How to calculate the principal and interest in this case.

Trial

Although the case involved in the lending principal of 660,000 yuan, Xie Mouwei only submitted a transfer voucher of 600,000 yuan. Mouxin, Wei Mouwen, and Huang Moubin also denied received 60,000 yuan in cash. Therefore, Xie Mouwei's statement on the delivery of 60,000 yuan was not identified by the court.

Gan Mouxin, Wei Mouwen, and Huang Moubin returned 300,000 yuan on April 24, 2014. Xie Mouwei advocated that 300,000 yuan was Gan Mouxin and Huang Moubin returned to April 8, 2014 Borrowing, not to repay the borrowing of this case. However, the criminal judgment submitted by Ganxin confirmed that the loan on April 8, 2014 did not actually happen. Therefore, Xie Mouwei's statement about the 300,000 yuan department's repayment on April 8, 2014 was not identified by the court. According to the debit, transfer vouchers, criminal judgment and other evidence submitted by the two parties, Gan Mouxin, Wei Mouwen, and Huang Moubin actually borrowed 600,000 yuan from Xie Mouwei, which had returned 300,000 yuan.

In addition, the court also found out that Xie Mouwei often borrowed funds from Gan Mouxin and others, and often borrowed funds from unspecified people from the society. From 2012 to 2018, Xie Mouwei was a civil loan dispute case that the plaintiff sued. As high as 37. As a natural person, Xie Mouwei does not have the qualifications for lending loan. He has repeatedly lending to unspecified people for the purpose of obtaining high interest, which is a "professional lender" and constitutes illegal lending.

Referee result

The court of first trial determined that the borrowing relationship between the two parties was legal and valid, and the judgment of Gan Mouxin and others jointly repaid the principal of 660,000 yuan to Xie Mouwei and paid interest to guarantee the guarantee of the guarantee.

The retrial court believes that Xie Mouwei violates the regulations of the banking industry, engaged in regular loan business for the purpose of making high interest, disturbing my country's financial market and financial order, harming the public interests of the society, constituting illegal lending, and Gan Moumou The borrowing relationship between Xin, Wei Mouwen, and Huang Moubin should be determined. Gan Mouxin, Wei Mouwen, and Huang Moubin should repay the loan from Xie Mouwei and pay the interest loss during the period of occupation.

The 300,000 yuan returned by Gan Mouxin, Wei Mouwen, and Huang Moubin. After the interest of the funds was offset, the excess part was directly offset the borrowing principal. Then he sentenced Gan Mouxin, Wei Mouwen, and Huang Moubin to return the principal of 305,615 yuan, and paid the funds to occupy the funds for segmented interest rates announced by the loan market quotation interest rates announced by the National Bank of China Interbank Borrowing Center during the same period and the same period of the same period.

Professional lending refers to illegal acts that have not been approved by the regulatory authorities, or surpass the scope of business, and for profit, and regularly issue loans to unspecular people to the society. Professional lending not only disrupts the order of the financial market, but also easily breeds the evil forces, causing illegal criminal activities such as illegal detention, routine loans, and false lawsuits.

Therefore, professional lending activities are prohibited by the law. The majority of citizens should be vigilant when participating in folk financing activities. Before borrowers' borrowing, pay attention to understanding the situation, avoid caught in a high -profile trap. The interests are risky.

1. Before borrowing, the borrower must understand whether the borrower has the background and information of illegal lending and illegal lending to avoid traps in the usury; pay attention to whether the amount stated in borrowing is consistent with the amount stated by the borrowing; Interest payment avoids cash delivery.

After the dispute occurs, it is necessary to pay attention to collecting the fact that the borrower has continued to be multiple times during the two years, and high interest rates to unspecular borrowing items. Based on this, the court can claim that the borrower has a professional lending and illegal loan behavior, and requires that the court to confirm that the borrowing relationship is invalid to avoid paying interest that exceeds the upper limit of judicial protection. If a borrower shall be criminal such as violent debt collection, illegal detention, and illegal fund -raising, it is necessary to call the police in a timely manner to investigate its criminal responsibility.

2. Before lending the borrowing, you should inquire about the relevant provisions of the laws and regulations on laws and regulations, and pay special attention to the relevant policies of the central government on vocational lending and illegal lending. To maintain high degree of vigilance, do not take risks. In addition, we must pay attention to preventing false lawsuits fictional debt in methods such as "rendering of truth, fake flowing water" and "cash payment". Once the criminal law is touched, it will be punished by legal sanctions.

Related laws and regulations "People's Republic of China"

Second -edited contract

Article 680 is prohibited from lending in high profit, and the interest rate of borrowing shall not violate relevant national regulations.

The "Supreme People's Court's Provisions on Several Issues of Application of Laws on Civil Loan Cases" (Fa Shi [2015] No. 18) has one of the following situations, and the people's court shall identify that private lending contracts are invalid: (1) Tested finance The institutional credit funds are also highly transferred to the borrower, and the personnel of the borrowing know or should be known in the first place; If you know or you should know; (3) the borrower knows or should know that the borrower's loan is still provided for illegal and criminal activities; (4) those who violate social order and good customs; of.

"Opinions of the Ministry of Public Security of the Supreme People's Court of the Supreme People's Procuratorate on the Ministry of Justice of the Public Security Department of the Public Security of the Supreme People's Procuratorate on handling criminal cases of illegal lending criminal cases" (October 21, 2019)

1. In violation of national regulations, without the approval of the regulatory authorities, or transcending the scope of business, for the purpose of profit, to often issue loans to the social unspecified objects to disturb the financial market order, and the circumstances are serious. The provisions of Article (4) shall be punished with illegal operation.

The "shall be issued loan to the social unspecified objects to unspecified objects" in the preceding paragraph refers to the borrowing or other borrowing funds to unspecular multiple people (including units and individuals) in unspecified multiple people within 2 years.

"People's Republic of China Banking Regulation and Administration Law" (Amended 2006) (Chairman of the People's Republic of China No. 58)

Article 19 Without the approval of the banking supervision and management agency of the State Council, no unit or individual shall set up a banking financial institution or business activities engaged in banking financial institutions.

"Minutes of the National Court of Civil and Commercial Trial Works" (French [2019] No. 254)

Article 53 The legal person who has not obtained loans in accordance with the law, and a non -person organization organized by a private lending industry or a non -governmental lending behavior engaged in private loans or natural persons shall be determined in accordance with the law. Those who have repeatedly engaged in the loan of the people during the same period of the same borrowing person during a certain period of time can generally be identified as professional lenders.

Source: Guangxi High Court

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