The actual borrowing business of the enterprise, which is a valid for the loan contract for high loans of high loans?

Legal knowledge points: In judicial practice, some companies themselves do not have the qualifications to engage in financial business, but they actually operate a loan of foreign loans and provide the same business as financial institutions. The court's approval on how to determine the effectiveness of borrowing behavior between citizens and enterprises "and the fourteen of the Supreme People's Court on Several Issues of the Application of Laws on Civil Loan Cases". With a loan, the loan contract is invalid due to violations of compulsory regulations. The rights and obligations stipulated in the loan contract cannot be realized. They can only be returned according to the principle of invalid contracts. The property obtained by the invalid contract is returned to each other, and the losses caused by the invalid contract are shared according to the responsibilities of all parties. In order to better explain the meaning of this legal provision, I will now share a related practice case for your reference.

Summary of the case: The actual business loan of the property company provides business loans. Due to violations of legal regulations, the loan contract entered into is invalid contract according to law.

Brief introduction of the case: A property company complained that Liu Mouyang signed the "Commodity House Sales Contract" with a city real estate development Co., Ltd. on December 31, 2014 to purchase 22 in a certain Avenue Garden 22 developed by a city real estate development Co., Ltd. Building XXXX real estate, the total price of the real estate is 815,828 yuan. In order to purchase the above real estate, Liu Mouyang signed a "borrowing agreement" with a property company on January 1, 2015. The agreement stipulated that a property company provided the defendant Liu Mouyang with interest -free loan 195828 yuan as some first -phase housing. From the date of effectiveness of the contract, the defendant Liu Mouyang had to return the loan to a property company in six phases, and returned the borrowing principal of 32,638 yuan each period. And agreed to liability for breach of contract.

According to the "Loan Agreement", a property company has planned the loan to the account designated by the defendant Liu Mouyang, but the defendant Liu Mouyang did not return the loan on time according to the contract, and the time of overdue repayment has exceeded 30 days Essence A property company believes that the defendant Liu Mouyang's behavior has constituted a breach of contract. A property company has the right to terminate the "Loan Agreement" signed with the defendant Liu Mouyang and ask the defendant Liu Mouyang to immediately pay all the remaining borrowings and liquidated damages. Tong's "Guarantee Letter" was issued on January 1, 2015, and promised to bear the joint guarantee responsibility for the defendant Liu Mouyang's above -mentioned debt. Based on this, the defendant Tong Moucheng responded to the defendant Liu Mouyang's above -mentioned debt to bear the joint guarantee responsibility.

Therefore, a property company claims to the court to request the court to judge: the "Loan Agreement" signed by the defendant Liu Mouyang and a property on January 1, 2015; The borrowing that has not been returned within the time limit calculates the default damage based on the standard rate of 24%of the annual interest rate. Until the actual settlement date, the liquidated damages on January 16, 2017 were 8,454 yuan); The debt assumes the joint guarantee responsibility. The defendant Liu Mouyang and Tong Moucheng did not answer.

The point of judgment: The court believes that the business scope of a property company does not include financial -related businesses, and should not be engaged in financial business activities such as loans in accordance with the law. There are many similar cases similar to the court to the court as the court, that is, the company has issued loans to unspecified borrowers. Based on this, it can be shown that a property company's borrowing item to the defendant Liu Mouyang belongs to the enterprise to issue a loan to the public in the name of a loan.

According to Article 5 of the "Measures for the Banning of illegal Financial Institutions and illegal Financial Business Activities", the Supreme People's Court "Approval on the Effectiveness of Citizens and Enterprises", "The Supreme People's Court of the Supreme People's Court" Explanation of several issues (1) "and" Provisions of the Supreme People's Court on the Laws of the Supreme People's Court on the Application of Laws in Civil Loan Cases ", the court determines that a property company and the defendant Liu Mouyang signed by the court Agreement is invalid.

According to Article 58 of the Contract Law of the People's Republic of China, after the contract is invalid or after being withdrawn, the property obtained by the contract shall be returned; if it cannot be returned or necessary, it shall be compensated for discount. The party with faults shall compensate the other party's losses because of this, and both parties shall have their own faults and shall bear the corresponding responsibilities. In combination with the actual situation of the case, the defendant Liu Mouyang should return the property obtained from the property management Co., Ltd. of a property company Shenzhen, a property management Co., Ltd., which is 65268 yuan and funds occupied by the case. As for the payment standards for funds occupation fees, according to the principles of fairness and honesty, it is advisable to calculate the benchmark interest rate of similar loans during the same period of the same period. Regarding funds occupation fees, they are calculated according to the same loan benchmark interest rates stipulated by the People's Bank of China during the same period.

As the "Loan Agreement" involved in the main contract is invalid, the "guarantee letter" as a contract is also invalid. The "Loan Agreement" was invalid due to illegal, and the defendant Tong Moucheng had a fault. According to Article 8 of the "Supreme People's Court on the Application of the" Several Issues of the Guarantee Law of the People's Republic of China "; the main contract is invalid and the guarantee contract is invalid, and the guarantor is not faulty, the guarantor will not bear civil liability; In the part of the guarantor's civil liability, it should not exceed one -third of the debtor's cannot settle the part. Therefore, the defendant Tong Moucheng responded to the defendant Liu Mouyang who could not settle the debt part of the property management Co., Ltd. of a property company in a property company. After the defendant Tong Cheng's responsibility, he had the right to recover to the defendant Liu Mouyang. The defendants Liu Mouyang and Tong Moucheng were summoned by the court, and they refused to attend the lawsuit without justified reasons. They were deemed to have given up their right to claim the defense and should bear the corresponding consequences. Based on this, the court ruled that a property management Co., Ltd. and Liu Mouyang signed by Liu Mouyang signed by Liu Mouyang were invalid. Liu Mouyang returned 65,268 yuan and payment funds to a property management Co., Ltd. (based on 65,268 yuan as the basis for the legal effect of this judgment. Calculation of the benchmark interest rate). Tong Moucheng assumed the defendant Liu Mouyang's failure to pay off the debt of the above -mentioned judgment. After the defendant Tong Cheng's responsibility, he had the right to recover to the defendant Liu Mouyang.

Lawyer comments: In the above cases, the business scope of a property management Co., Ltd. obviously does not include financial -related businesses, and should not engage in financial business such as loans in accordance with the law. According to the case, according to this, the court determined that the company was engaged in lending business and distributed loans to unspecified borrowers, which belonged to the scope of financial business. Therefore, the loan contracts established by the two parties were identified as invalid.

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