I. Acceptance and jurisdiction
Article 1 The following disputes between natural persons or between natural persons and legal persons or other organizations of non-financial institutions shall be accepted as cases of private lending disputes:
(1) Currency lending disputes;
(2) Disputes over borrowing and lending bearer securities such as treasury bills.
Article 2 After the debts of other legal relationships such as buying and selling, contracting and equity transfer are paid off. The debtor confirms the debt in the form of a written IOU, and the creditor files a lawsuit accordingly. If the debtor or guarantor disputes the validity and performance of the basic legal relationship, and there is evidence that the dispute is really caused by other legal relationships, the case shall be tried according to the basic legal relationship in principle, but the receipt can still be used as important evidence for the performance of the basic contract.
Article 3 Private lending disputes shall be governed by the General Principles of Jurisdiction over Contract Disputes, which shall be under the jurisdiction of the court of the defendant's domicile or the place where the contract is performed.
According to the Supreme People's Court's Reply on How to Determine the Place of Performance of the Loan Contract (Fa Fu [1993]No. 10), the domicile of the lender is the place where the contractual obligations are performed, unless otherwise agreed by the parties.
If the borrower and the lender have an agreement on litigation jurisdiction, and it does not violate the relevant provisions of the Civil Procedure Law on hierarchical jurisdiction and exclusive jurisdiction, such agreement shall prevail.
If the defendant's whereabouts are unknown, it shall be under the jurisdiction of the court where the defendant's original domicile or property is located.
Enterprises involved in a number of private lending disputes meet the requirements of the Notice on Centralized Jurisdiction of Major Cases of Corporate Debt Caused by Capital Chain Breakage (Zhejiang Gaofa [2008] No.289), and the relevant people's courts may apply for centralized jurisdiction according to this Notice.
Second, the litigant.
Article 4 A party who holds debt certificates such as IOUs is presumed to be a creditor and has the plaintiff's subject qualification.
If the defendant objects to the plaintiff's subject qualification and provides sufficient evidence to prove that the holder of the creditor's rights certificate is not a creditor or the assignee of the creditor's rights, he may rule to dismiss the prosecution.
Article 5 The borrower who signs the receipt is presumed to be the debtor and has the qualification of defendant.
The plaintiff should have a clear defendant in the prosecution. If the defendant is unclear, it will not be accepted. If it has been accepted, it shall be ruled to dismiss the prosecution.
In the course of hearing a case, if the defendant is found to be unqualified, if the actor fictionalizes the borrower or borrows money in the name of a revoked legal person or other organization, the court shall inform the plaintiff to replace the defendant. If the plaintiff refuses to change or cannot change, he may rule to dismiss the prosecution. If it is found that the defendant is an impostor, an impostor, and there is no fault, the judgment rejects his claim.
Article 6 Where two or more lenders enjoy the same creditor's rights, and only one or some lenders bring a lawsuit against the borrower, the court shall add the other lenders as plaintiffs, unless the other lenders explicitly waive their rights against the borrower. If other lenders who give up their creditor's rights file a separate lawsuit against the borrower, it will not be accepted. If they have accepted, they will be ruled to dismiss the lawsuit.
Article 7 In the joint and several liability guarantee, if the lender only sues the borrower or guarantor, the court will not voluntarily add the guarantor or borrower as a co-defendant. If the defendant guarantor claims that the borrower participates in the lawsuit, and the lender still does not apply for adding the borrower as a co-defendant after the court explains, the court may only hear the lawsuit of guarantee.
Article 8 If a borrower borrows money from another person in the name of one of the spouses, and the relationship between the spouses still exists at the time of the lawsuit, and the creditor fails to list the spouse as a co-defendant, the court shall not take the initiative to notify the borrower's spouse to participate in the lawsuit, unless the spouse applies to participate in the lawsuit or the case is suspected of false litigation.
If the loan occurred during the existence of the husband-wife relationship, and one of the lenders or borrowers was divorced at the time of litigation, the plaintiff or defendant may apply to add his original spouse as a co-defendant.
Three. Establishment, entry into force and effectiveness
Article 9 A loan contract is established if the borrower and the borrower reach a loan agreement in writing, orally or by signing a loan contract, issuing an iou, an iou, sending a text message or e-mail.
Article 10 A legally established private lending contract shall take effect when the money is actually delivered to the borrower or the payee designated or recognized by the borrower.
Eleventh private lending contract effectiveness, should be in accordance with Article 52 of the contract law and the Supreme People's Court "on the application of.
In the loan between a natural person and a non-financial enterprise, if the enterprise uses the loan funds for legal production and business activities and does not constitute financial crimes such as fund-raising fraud and illegal absorption of public deposits, it is not appropriate to consider the loan contract invalid.
Article 12 After private lending is deemed invalid, the borrower shall return the loan principal to the lender. If the no-fault lender requests the borrower to compensate for the losses during the period of capital occupation, the court may support it with reference to the benchmark interest rate of loans of the same grade at the same period published by the People's Bank of China.
Article 13 A guarantee contract is a subsidiary contract of a loan contract. If the borrower of the main contract is suspected of committing a crime, it does not necessarily lead to the invalidation of the guarantee contract. If the guarantor claims that the borrower of the main contract is suspected of committing a crime, the court will confirm the guarantor's responsibility on the premise of confirming the effectiveness of the main contract according to law.
When the guarantee contract is invalid, the court shall bear corresponding civil liabilities such as returning the price and compensating for the losses according to the fault of the lender, borrower and guarantor. When the loan contract is valid and the guarantee contract is invalid, or when the loan contract is invalid and the guarantee contract is invalid, the court shall, in accordance with the Supreme People's Court's "About the Application"
Fourth, the review of the loan facts.
Article 14 The IOU is the direct evidence to prove the existence of the agreement between the two parties and the actual occurrence of the loan relationship, which has strong probative force. The court shall carefully examine the authenticity of the IOU. Unless there is conclusive evidence to the contrary, it is generally not easy to deny the probative force of IOUs.
If the debtor disagrees with the authenticity of the handwriting or signature of the IOU, both parties may supplement or refute the evidence. The court shall comprehensively examine and judge the authenticity of the iou according to the valid evidence provided by both parties and other evidence and relevant circumstances of the case.
If it is necessary to confirm the authenticity of the iou through judicial expertise, both parties may apply for judicial expertise. If neither party applies, the court may handle it according to the specific circumstances:
(1) If the creditor only files a lawsuit on an IOU, and there is no other evidence to support it or there is reasonable doubt about the authenticity of the IOU, the creditor shall apply for authentication, and the debtor shall provide a handwriting comparison sample.
(2) The evidential materials such as IOUs provided by creditors have certain credibility, and if the debtor objects to the authenticity of IOUs but fails to provide evidence to refute them, the debtor shall apply for appraisal.
According to law, if the creditor or debtor fails to apply for authentication or provide handwriting comparison samples, and the facts of the case cannot be ascertained, the court shall make a judgment according to law.
To apply for judicial authentication, it shall be submitted to the judicial authentication institutions and judicial appraisers with authentication qualifications as stipulated in the Decision on the Administration of Judicial Authentication in the National People's Congress Standing Committee (NPCSC) and the Regulations on the Administration of Judicial Authentication in Zhejiang Province. The appraisal fee shall be paid in advance by the applicant, and the final burden shall be determined in accordance with the provisions of Article 29 of the State Council's Measures for Payment of Litigation Fees (the State Council Order No.481).
Article 15 If the creditor only provides the payment voucher but not the loan agreement voucher, and the debtor claims that there is no loan relationship or other relationship between the two parties, the creditor shall provide further evidence of the existence of the loan agreement between the two parties.
If it can be determined that there is a loan relationship between the two parties, it shall be tried in accordance with private lending disputes; If it is found that the debt is caused by other legal relations, the court shall explain to the parties that the creditor will try it according to other legal relations after changing the creditor's rights and reasons. If the creditor insists on not changing, the court will reject the claim. After the judgment rejects the creditor's rights, the creditor may bring other lawsuits based on other legal relationships.
Article 16 Creditors shall bear the burden of proof for loan agreements and loan facts such as loan amount, term, interest rate and payment. If the debtor raises a defense, it shall provide evidence to prove the rebuttal.
If the debtor claims that the loan principal, interest and other debts have been returned or partially returned, it shall bear the burden of proof. If no evidence can be provided or the evidence is insufficient, it will not support its claim.
Article 17. If the creditor only sues the loan that requires cash payment, but fails to provide the payment voucher, and 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 to state the specific facts and processes such as the reason, time, place, source and use of cash payment, and accept the inquiries of the other party and the court. Those who refuse to appear in court without justifiable reasons shall bear the corresponding consequences.
The court shall, based on the amount of cash delivery, the lender's ability to pay, the local or inter-party transaction mode, trading habits and the close relationship between the borrower and the lender, combine the parties' own statements, oral arguments in court and other indirect evidence provided, and use logical reasoning and common sense in daily life to comprehensively examine and judge whether the loan fact really happened. When necessary, the court may investigate and collect evidence ex officio.
If the lender makes a reasonable explanation for the petty cash delivery, it is generally regarded that the creditor has completed the burden of proof in the sense of behavior, and the fact of borrowing can be determined. For the definition of the amount, in view of the differences in economic development in different regions of the province and the personal economic ability of lenders, judges can make judgments according to the specific circumstances of each case.
Article 18 In order to find out the facts of a case, the court may, according to the needs of the case, conduct an investigation ex officio or require the borrower to provide evidence on some facts. If the facts of the case are not true or false, the creditor shall bear the burden of proof in the sense of result on the fact that there are legal requirements such as loan agreement and payment between the borrower and the lender. The debtor shall bear the burden of proof in the sense of result for the fact that the creditor's rights it defends have been damaged or restricted, and the creditor's rights have been eliminated or partially eliminated.
Article 19 During the marriage relationship, the debts incurred by one spouse in his own name due to the needs of daily life shall be recognized as the debts of husband and wife.
The needs of daily life refer to the necessary matters for husband and wife and their minor children to live together in daily life, including the purchase of daily necessities, medical services, children's education, daily cultural consumption and so on.
If a spouse has debts beyond the needs of daily life, it shall be recognized as personal debts, except for the following circumstances:
(a) the lender can prove that the property obtained from the debt is used for family life and business needs;
(2) The other spouse ratifies the debt afterwards.
If the debt does not belong to the daily needs of the family, the lender may invoke the provisions of Article 49 of the Contract Law on agency by estoppel, and require the husband and wife to share the debt repayment responsibility.
If the lender invokes the rules of agency by estoppel to require both husband and wife to bear the debt repayment responsibility, it shall bear the burden of proof for the constitutive requirements of agency by estoppel.
The burden of proof of agency by estoppel applies to article 13 of the Supreme People's Court's Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes under the Current Situation (Fa Fa [2009] No.40).
Twentieth private lending can be paid or unpaid. If there is no agreement or unclear agreement between the borrower and the borrower on the payment of interest, it shall be regarded as not paying interest according to the provisions of Article 211 of the Contract Law, except that the borrower pays interest voluntarily.
If the borrower and the borrower have an agreement on the interest rate within the loan term, such agreement shall prevail. If the agreed interest rate exceeds four times the benchmark interest rate of loans of the same grade in the same period announced by the People's Bank of China at the time of the lending behavior (hereinafter referred to as four times the interest rate), the court will generally not protect the excess interest. However, if the borrower voluntarily pays more than four times the interest to the lender, and it does not harm the interests of the state and society or the legitimate rights and interests of others, the court may not intervene.
Article 21 The loan amount indicated on the receipt is generally recognized as the principal.
If the interest has been deducted from the principal in advance, the principal shall be determined according to the actual loan amount.
There is evidence that the IOU presented by the creditor was reissued after the two parties paid off the principal and interest of the previous loan in a rolling way, and the compound interest was calculated. If the actual interest rate after conversion does not exceed 4 times the interest rate, the amount of arrears confirmed by the receipt can be confirmed as the principal; The converted actual interest rate exceeds 4 times of the interest rate, and the excess interest is deducted from the principal.
Article 22 If the borrower and the lender have an agreement on the overdue interest rate, such agreement shall prevail. If the interest rate exceeds 4 times, the court will generally not protect the excess interest.
If the overdue interest rate is not agreed or clearly agreed, the court may handle it according to different circumstances:
(1) If the interest rate is agreed only during the loan period, and the overdue interest rate is not agreed, the lender may claim the overdue repayment interest from the borrower with reference to the agreed interest rate or according to the provisions of Article 3 of the Notice of the People's Bank of China on Issues Concerning RMB Loan Interest Rate (Yinfa [2003] No.251).
(2) If there is no agreement on the interest rate and overdue interest rate within the loan term, the lender shall calculate the interest loss from the date of loans overdue or the date of claiming rights from the borrower with reference to the benchmark interest rate of loans of the same period and grade published by the People's Bank of China, which shall be supported.
Article 23 If both the borrower and the lender have agreed on the overdue interest rate and the liquidated damages for overdue repayment, the lender may choose to claim the overdue interest or liquidated damages, but neither shall exceed four times the interest rate.
The lender claims overdue interest and liquidated damages at the same time, and the court can support it if the converted actual interest rate does not exceed 4 times the interest rate.
Article 24 If the liquidated damages agreed between the borrower and the lender exceed the interest rate by four times, the court shall reduce the excess, unless the debtor explicitly expresses voluntary payment.
The provisions of the preceding paragraph shall also apply to debtors who are tried in absentia.
Article 25 If the debtor's payment is insufficient to pay off several loan debts to the same creditor, priority shall be given to paying off the debts that have expired; If several debts are all due, priority shall be given to paying off the debts that lack guarantee for creditors or have the smallest amount of guarantee; If the amount of guarantee is the same, the debts with heavier debt burden shall be offset first; If the burden is the same, it shall be offset in the order of debt maturity; If the maturity time is the same, it will be offset in proportion. However, unless there is an agreement between the creditor and the debtor on the repayment or liquidation order of the debt.
In addition to the loan principal, the debtor should also pay interest and fees. If the payment is not enough to pay off all debts, and the parties have not agreed, the court shall set them off in the following order:
(1) Expenses related to the realization of creditor's rights;
(2) Interest or liquidated damages.
(3) loan principal.
The court shall respect the interests of creditors who voluntarily give up the aforesaid liquidation order.
Twenty-sixth after the completion of the debt, the borrower sued the lender for returning the paid interest or liquidated damages on the grounds that the interest or liquidated damages exceeded the scope of judicial protection, which is generally not supported.
Article 27 Disputes arising from borrowing foreign currency, Taiwan dollar, Hong Kong dollar and Australian dollar. , and the lender requires repayment in the same currency, it may be allowed. Lenders' claim that exchange rate difference losses are caused by exchange rate changes shall be supported.
If the borrower does not have the same currency and has an agreed loan term, it can be repaid in RMB with reference to the benchmark exchange rate announced by the State Administration of Foreign Exchange at the expiration of the loan term; If there is no agreed loan term, it can be repaid in RMB with reference to the benchmark exchange rate announced by the State Administration of Foreign Exchange on the date when the lender claims to repay the loan.
Verb (short for verb) The trial of false litigation.
Article 28 When trying disputes over private lending, we should carefully examine private lending disputes, prevent and investigate false litigation, safeguard judicial authority, and promote good faith litigation in accordance with the provisions of Several Opinions of Zhejiang Higher People's Court on Preventing and Investigating false litigation's Civil Trial (Zhejiang Gaofa [2008] No.362).
Article 29 If the court finds any of the following circumstances during the trial, it shall strictly examine the facts such as the reason, time, place, source of funds, mode of delivery, destination of funds, and economic conditions of both borrowers and borrowers:
(1) The plaintiff is a debtor in many other or important creditor-debtor relationships;
(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;
(three) the defendant has been involved in private lending disputes for many times in a certain period of time;
(four) the parties have close relatives and other special relationships;
(five) one or both parties did not appear in court to participate in the proceedings, and the entrusted agent made unclear or contradictory statements on the facts of the loan;
(6) The two parties have no dispute over the fact of borrowing or have no substantive defense confrontation;
(seven) other creditors or borrowers' spouses and other outsiders raise objections;
(8) Creditors give up their rights easily and reach a mediation agreement with debtors;
(9) Other abnormal conditions.
Thirtieth cases suspected of false litigation, the court can take the following measures to prevent:
(1) Summon the lender, the borrower himself or the relevant handling personnel to appear in court and inform them of the adverse legal consequences of refusing to appear in court without justifiable reasons;
(two) require the parties to further submit other relevant evidence, including applying for witnesses to testify in court;
(3) Inform the relevant interested parties, and notify them to participate in the litigation according to their application or ex officio. Other creditors who participate in litigation are listed as third parties; The spouse participating in the litigation is classified as * * * with the plaintiff or * * * with the defendant;
(4) Investigating and collecting evidence ex officio;
(5) Other measures that can be taken according to law.
Thirty-first cases suspected of false litigation, the court should generally apply ordinary procedures.
Cases involving multiple private loans by one or both parties may be tried by the same collegial panel.
Where related cases are tried together, the same principle of isolation as witnesses shall be adopted for different creditors during the trial, and different creditors shall appear in court to state relevant facts and accept court inquiries.
Thirty-second cases of private lending disputes confirmed by examination in false litigation have not yet been decided, and the prosecution shall be dismissed according to law; If an effective judgment document has been made, the court shall, in accordance with the procedure of trial supervision, revoke the effective civil judgment or civil mediation, and make a ruling to dismiss the prosecution.
In a case suspected of false litigation, the court may allow the parties to apply for withdrawal of the case; In a case confirmed to belong to false litigation after examination, if the parties apply for withdrawing the lawsuit, the court will not allow it.
Intransitive verb others
Article 33 In the trial of private lending dispute cases, the principle of giving priority to mediation and combining mediation with judgment shall be followed, and the parties concerned shall be guided to apply for mediation by people's mediation organizations or entrust or invite people's mediation organizations and other organizations and personnel to mediate in accordance with the requirements of the Zhejiang Higher People's Court and the Zhejiang Provincial Department of Justice "Several Provisions on Further Strengthening the Construction of the Docking Mechanism between Complaints and Mediation (Trial)" (Zhejiang Gaofafa [2009] No.8).
Thirty-fourth for a series of cases of private lending disputes involving local social stability and financial security, such as centralized jurisdiction, bankruptcy and reorganization. , we should pay attention to the unification of the judgment scale of interest rate protection scope, and listen to the opinions of local governments and financial supervision departments when necessary.
Article 35 If the following loans claimed by the parties are not protected, their claims shall be rejected according to law:
(a) due to illegal cohabitation, improper sexual relations and other acts of "youth loss fee", "breakup fee" and other loans that are detrimental to social order and good customs.
(2) Loans between parents, children and other immediate family members who violate family ethics and social public order and good customs.
Article 36 The court shall strictly examine whether the defendant's whereabouts are really unknown, and take the following measures respectively to avoid delaying the proceedings:
(1) The interests of the relatives and other close associates of the defendant may be clarified or the plaintiff may be required to provide other contact information or clues of the defendant, and the defendant shall be informed to respond as much as possible;
(2) If the defendant whose whereabouts are unknown is served with litigation documents, it shall be handled in accordance with the Provisions on the Service of Litigation Documents in Civil and Commercial Cases (Trial) (Zhejiang Gaofa [2009]129). If a copy of the complaint, a notice of proof, a court summons and other litigation documents are served by announcement, the notice of proof shall specify the time limit for proof specified according to law;
(3) If the defendant fails to appear in court after being summoned according to law, the court shall try the case by default according to law, comprehensively and objectively examine the evidence in accordance with legal trial procedures, and make a judgment according to law. If the absent defendant fails to make a defense or provide evidence, it will not affect the court's examination of the evidence submitted by the parties appearing in court and, if necessary, conduct an investigation according to law.
Article 37 In the trial, if the court finds that the lending behavior is suspected of illegal fund-raising, illegal absorption of public deposits, drug trafficking, money laundering and other crimes, or one party claims that it is suspected of committing a crime, it shall transfer it in accordance with the provisions of Articles 10, 11 and 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Economic Disputes (Law Interpretation [1998] No.7).
(1) If the case has obvious criminal suspects and can be transferred as a whole, it shall be ruled to dismiss the prosecution, refund the case acceptance fee, and transfer the relevant materials to the public security organ or the procuratorial organ;
(2) One party claims to be suspected of committing a crime, but fails to provide evidence to prove it, or the other party is suspected of committing a crime, which is not necessarily related to the private lending dispute case or does not belong to the same legal relationship, and the case continues to be tried, but the clues and materials about the suspected crime can be transferred to the public security organ or the procuratorial organ for investigation;
(3) If the trial of a case must be based on the investigation and trial results of a criminal case, an order shall be made to suspend the proceedings. After the lawsuit is suspended, if the criminal case cannot be investigated and concluded within 12 months without special circumstances, the trial of private lending disputes can be resumed according to the specific circumstances.
If the public security organ or procuratorial organ refuses to file a case for investigation after receiving the relevant materials of the case transferred by the court or the report of the relevant parties, or if the case is dismissed after the case is filed for investigation, and the court finds that the criminal case does not constitute a crime after prosecution, and the lender files a civil lawsuit again, the court shall accept the case and make a civil judgment according to the facts of the case identified in the trial.
The court should use the ruling cautiously to dismiss the lawsuit and suspend the lawsuit.
Thirty-eighth cases of private lending disputes shall be tried in accordance with the provisions of the contract law, the property law, the guarantee law and the general principles of the civil law. Where there are no provisions or unclear provisions in laws and regulations, the Supreme People's Court's "Several Opinions on People's Courts Handling Loan Cases" (Law [199 1]2 1) and other judicial interpretations.
Seven. supplementary terms
Article 39 These Guiding Opinions shall come into force as of the date of issuance. Where the specific contents are inconsistent with the newly promulgated laws, administrative regulations and judicial interpretations, the newly promulgated laws, administrative regulations and judicial interpretations shall prevail.