2065438+On August 6th, 2005, the Supreme People's Court officially promulgated the Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases (hereinafter referred to as the Provisions), and all the media described the promulgation of this judicial interpretation as "heavy". The Regulations provide clearer legal rules and judgment basis for a series of legal issues closely related to private lending, such as the lending relationship between natural persons, natural persons and legal persons or other organizations, the acceptance and jurisdiction of private lending cases, the handling rules of civil and criminal cases, the responsibility sharing of Internet lending platforms, the judicial judgment standards in false litigation, and the scope of interest protection. But the most important thing is that the legal effect of inter-enterprise lending behavior is affirmed at the level of judicial interpretation for the first time. It is believed that with the implementation of the regulations, the long-standing chaotic pattern of inter-enterprise lending in commercial practice and judicial practice will be standardized, which will play an inestimable role in social and economic stability and judicial unity.

Confirmation of the legal effect of inter-enterprise lending by judicial organs before the implementation of the Regulations

For a long time, the administrative organs and judicial organs have completely denied the inter-enterprise lending behavior. These provisions that explicitly refuse inter-enterprise lending include:

Reply of the People's Bank of China on Inter-enterprise Lending.

General principles of loans

Reply of the General Office of the People's Bank of China on the financing of disguised loans of listed companies.

The Supreme People's Court's answers to some questions about the trial of joint venture contract disputes.

The Supreme People's Court's Reply on How to Deal with Borrowers' Overdue Repayment of Loans, etc.

Until 20 13, Xi Xiaoming, former vice president of the Supreme People's Court, affirmed the legal effect of inter-enterprise lending for the first time in his Speech on Several Issues Concerning the Application of Laws in Commercial Trials (hereinafter referred to as the Speech), arguing that "it is not a compulsory act to violate national financial control for enterprises that do not have financial business qualifications to temporarily borrow funds for production and operation needs, if the party providing funds does not take financial intermediation as its usual business.

This remark has greatly changed the judicial authorities' determination of the legal effect of inter-enterprise lending. In the subsequent judgment, the Supreme People's Court determined that the inter-enterprise loan that met the requirements was valid. Of course, this recognition does not recognize all bottomless inter-enterprise lending behavior. Criteria for judging the "effectiveness" of a speech include:

For the needs of production and operation

Lenders don't make financing their regular business.

Does not violate the mandatory provisions of national financial supervision.

Judicial confusion before the promulgation of the regulations

Before the promulgation of the Speech, although all inter-enterprise loans were deemed invalid, the lack of high-level legal basis was a problem that could not be ignored. Although the publication of the "Speech" made the inter-enterprise lending see the dawn, it did not fundamentally solve the legal nature of inter-enterprise lending, but caused confusion in judicial practice to some extent.

1. There is no clear legal basis for the judgment of the people's court that inter-enterprise lending is invalid.

Before the promulgation of the Speech, although many laws, regulations and replies denied the legal effect of inter-enterprise lending, there was no provision denying the legal effect of inter-enterprise lending at the level of laws and administrative regulations.

The stipulation in Article 52 of the Contract Law that a contract is invalid because it violates the mandatory provisions of laws and administrative regulations is usually used by the court as the legal basis for determining that inter-enterprise loans are invalid. However, this principle should not be abused, and the validity of the contract should not be denied at will, especially with the promulgation of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law, which has gradually become a consensus.

As a direct result, the vast majority of judgments are based on "violation of financial laws and regulations" to force the invalidation of inter-enterprise lending. However, it is impossible to point out which financial regulation the parties violated, not to mention the legal status of this so-called financial regulation, and whether the relevant provisions in this financial regulation are effective and mandatory. This result is undoubtedly unconvincing to the parties concerned.

2. In the judgment, the people's court found that inter-enterprise lending also lacked a clear legal basis, which contradicted the current effective reply of the Supreme People's Court.

After the publication of the Speech, the Supreme People's Court and some local people's courts translated the spirit of the Speech into the reasons given in the judgment, and indirectly applied the spirit of the Speech as the basis for judging to affirm the effectiveness of inter-enterprise lending. Although this way is embarrassing, it fully conforms to the provisions of the contract law and its judicial interpretation. However, the existing problem is that the judge's reasoning in the part of "Our Court thinks" is contrary to the spirit of "the enterprise loan contract violates the relevant financial laws and regulations and is an invalid contract" in the current effective Reply of the Supreme People's Court on how to deal with overdue loans of borrowers.

3. The effectiveness of inter-enterprise lending in the court system is not uniform.

After the promulgation of the "Speech", although the Supreme People's Court's judgment on the legal effect of inter-enterprise lending has undergone a qualitative change, the local people's court may not "accept all the orders" because the "Speech" is only a guiding opinion and has no legal effect of judicial interpretation. Some local courts, including Beijing, have the same judgment on the legal effect of inter-enterprise lending as the Supreme People's Court, but some local courts, including Shanghai, still insist on applying the Reply of the Supreme People's Court on How to Deal with the Borrower's Overdue Repayment as the basis of judgment.

This kind of chaos directly led the parties to be forced to take "whether the area where the court accepted the case bought the speech" as one of the factors to judge whether the legal effect of inter-enterprise lending can be recognized by the court, which seriously affected the authority and credibility of the judicial organs.

In order to avoid legal risks, enterprises cover up the essence of inter-enterprise lending through various "legal forms", causing commercial chaos.

Although the judiciary has long maintained the attitude that inter-enterprise lending is invalid, the demand for inter-enterprise lending in the market is increasing with the development of economy, and the contradiction between them is becoming increasingly fierce. In order to achieve the purpose of financing and avoiding legal risks, a series of "freaks" in commercial transactions were finally born. These "freaks" include:

1. It is called a joint venture, but it is actually a loan.

This is the product of the transition from planned economy to market economy. In order to curb this phenomenon, in 1990, the Supreme People's Court issued "the Supreme People's Court's Answers to Several Questions on the Trial of Joint Venture Contract Disputes", which directly defined it as "invalid".

2. It is called capital contribution, but it is actually a loan.

The method of this model is similar to joint venture, but it is actually borrowing. It also cooperates by agreeing on fixed income, but the way is changed to equity investment. After the transaction is completed, the fund lender withdraws from the company that invested in the shares.

3. It is called buying and selling, but it is actually borrowing.

In practice, it is usually shown that the lender plays the buyer and the borrower plays the seller. The lender pays the "payment for goods" to the borrower in one lump sum, and if the borrower fails to supply the goods at maturity, it will pay the "liquidated damages" to the lender in the way agreed in the sales contract, and finally return all the "payment for goods". Lenders recover the principal by recovering the "payment for goods" and earn interest income by collecting the "liquidated damages".

This trading model gradually developed, and finally upgraded to a more "high-end" pallet trading model, which was more hidden by many enterprises through serial trading.

In addition to the above models, there are some more hidden models that play the role of "covering up inter-enterprise lending". These compulsory trading modes may not effectively protect the legitimate rights and interests of all parties in practice. At the same time, it also makes it more and more difficult for people's courts to make legal characterization and judgment on these transactions, which is difficult to unify.

The promulgation of the "Regulations" will largely standardize the above chaos in judicial practice and commercial practice.

With the promulgation of the "Regulations", whether inter-enterprise lending is effective or not has a judgment standard and legal basis at the level of judicial interpretation, so that people's courts can directly refer to the provisions of judicial interpretation when making judgments, avoiding the embarrassment of "no legal basis" and "spiritual support".

On the other hand, regulations are different from speech, the latter is only a guiding spirit, but the former is the criterion that people's courts must abide by when making judgments. From then on, "whether the seat of the court accepting the case buys the speech" is no longer a factor to be considered in the lawsuit, and the judicial decision will be completely unified.

The "Regulations" give a positive attitude in principle and a negative attitude in special circumstances to inter-enterprise lending, which determines that the normal inter-enterprise lending behavior does not need to rack one's brains to find a coat to cover it up, and the corresponding business "freaks" will be fundamentally curbed due to insufficient market demand.

Therefore, the promulgation of the "Regulations" is undoubtedly of positive significance in judicial practice and commercial practice.

The "Regulations" did not give unlimited indulgence to inter-enterprise lending.

Although the "Regulations" relax the links between enterprises, it does not mean that enterprises can raise funds without restraint. Inter-enterprise lending still needs to be regulated by the contract law, and lending that violates Article 52 of the contract law will still be considered as invalid lending.

In addition, Article 14 of the Regulations lists the situations of inter-enterprise lending that should be deemed invalid, including:

1. Obtaining credit funds from financial institutions and usuring them to the borrower, and the borrower knew or should have known in advance;

2. Borrowing money from other enterprises or raising funds from employees of this unit is lent to the borrower for profit, and the borrower knows or should know in advance;

3. The lender knows or should know in advance that the borrower is still providing loans for illegal and criminal activities;

4. Violating social public order and good customs;

5. Other violations of mandatory provisions of laws and administrative regulations.

Among them, items 1 and item 2 are similar to the Supreme People's Court's judgment rules that require "the lender takes effect as a lender of its own funds" in trial practice. However, the difference is that there are two provisions that limit this rule, specifically:

Item 1 of Article 14 of the Regulations does not actually deny the legal effect of lenders lending credit funds from financial institutions, but stipulates that such lending behavior is invalid when both conditions of "high-interest lending+borrower knowing" are met. Otherwise, even if the credit funds of financial institutions are used to lend to others, they should be regarded as valid.

In fact, the second paragraph of Article 14 of the Regulations does not deny the legal effect of lending funds obtained by borrowing from other enterprises or raising funds from employees of this unit, but stipulates that such lending is invalid if the parties meet two conditions at the same time, that is, "lending for profit+knowing by the borrower".

In addition, lending funds for illegal purposes and violating public order and good customs will also be deemed invalid according to law.

The loosening of the "Regulations" on inter-enterprise lending needs further testing.

It is true that the promulgation of the Regulations is of positive significance to both judicial practice and commercial practice, but the effect after its implementation needs to be further tested.

In my opinion, there are at least two issues that need attention:

1. Is it reasonable that the Regulation does not retain the requirement in the Speech that "lenders shall not use financial intermediaries as their regular business"?

The "Regulations" did not explicitly mention the requirement in the speech that "lenders shall not take financing as their regular business". In this case, if an enterprise takes borrowing funds as its regular or main business, it is worth considering whether all inter-enterprise loans related to it should be recognized as effective.

In other words, if an enterprise takes financing as its regular business and eventually evolves into a "bank", should it still be affirmed or acquiesced in law? If the answer is no, there is no clear legal basis in the Regulations. On the other hand, if the answer is yes, it remains to be tested by practice if a large number of such "banks" appear in the market.

2. Is it reasonable for enterprises to lend "non-owned funds" on the principle of determining the effectiveness, with the exception of more subjective and harsh situations?

The provisions of article 14 (1) and (2) of the Regulations have largely affirmed the legal effect of "non-self-owned funds" lending. It will eventually lead to the following four situations that should be recognized as effective according to law:

Lenders borrow money from financial institutions, and borrowers are well aware of this, and lenders have not obtained super-high benefits;

Lenders borrow money from financial institutions and obtain super-high returns, and the lenders are unaware of this;

Lenders use the funds lent by other enterprises or the funds raised from the employees of the unit to lend, and the borrower knows about it, so the lender does not make a profit;

Lenders use the funds lent by other enterprises or the funds raised from their employees to lend, so the lenders make profits, and the borrowers are unaware of this.

The above provisions may, to a certain extent, cause enterprises without corresponding credit ratings to obtain funds from financial institutions through other enterprises, and also enable enterprises with corresponding credit ratings to obtain reasonable benefits by borrowing funds from financial institutions. In addition, the funds lent by other enterprises and the funds raised by employees of this unit can also be used for lending and even for profit. Whether this "loose policy" will pose a threat to the financial security of financial institutions, other enterprises and employees of this unit is a problem worthy of attention.

In addition, the subjective element of "the borrower knew in advance or should have known" in Item (1) and Item (2) of Article 14 of the Regulations is a necessary element to determine that inter-enterprise lending is invalid. Without this requirement, even if the enterprise reloans at high interest rate or reloans the funds provided by the third party for profit, the lending behavior is still valid. In this case, whether this subjective element can effectively control the legal risk of "non-owned funds" lending remains to be answered in practice.

In a word, the promulgation of "Regulations" has loosened inter-enterprise lending, met the reasonable demand of diversified financing channels of enterprises in the environment of rapid economic development, and provided necessary legal support for judging the effectiveness of inter-enterprise lending at the level of judicial interpretation, which has an immeasurable positive role and should undoubtedly be affirmed. However, on the other hand, the Regulations do not strictly limit two potential hidden dangers that may affect economic stability, namely, "taking financial intermediaries as routine business" and "lending non-owned funds", especially the act of raising funds from financial institutions for lending under certain circumstances. What kind of influence these potential problems will have in practice needs further study. Whether the conditions set in Article 14 of the Regulation on the Lending of Non-owned Funds can play the expected role in judicial practice remains to be further observed. We will continue to pay attention to this.