First, the three benefits of private lending.
According to Article 260th of the Civil Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Civil Procedure Law) revised by 202 1, if the person subjected to execution fails to perform the obligation of paying money within the period specified in the judgment, ruling and other legal documents, he shall pay double the debt interest during the delayed performance. If the person subjected to execution fails to perform other obligations within the period specified in the judgment, ruling or other legal documents, he shall pay the delay in performance. It can be seen that the debt interest during the period of delayed performance includes general debt interest and double debt interest, so the calculation of overdue interest can be divided into two parts: one is before the expiration of the performance period determined by the effective legal document, and the other is after the expiration of the performance period determined by the effective legal document. The general debt interest during the period of delay in performance shall be calculated according to the method determined by the effective legal documents; If the effective legal document does not determine the payment of interest, it will not be calculated.
Second, there is no agreement or the agreement is unknown.
According to Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases (revised for the second time in 2020) (hereinafter referred to as the Judicial Interpretation of Private Lending), whether the court supports the lender's claim for interest shall be handled according to the following circumstances:
The so-called lack of agreement or unclear agreement means that in terms of "interest during the loan period", the parties have no agreement or unclear agreement on the interest of overdue repayment, which does not affect the creditor's claim for overdue interest.
Third, loan interest.
According to Article 25 of the Judicial Interpretation of Private Lending, if the lender requests the borrower to pay interest at the interest rate agreed in the contract, the people's court shall support it, except that the interest rate agreed by both parties exceeds four times the listed interest rate of the one-year loan market when the contract is established. The "one-year loan market quotation" mentioned in the preceding paragraph refers to the one-year loan market quotation issued monthly by the National Interbank Funding Center authorized by the People's Bank of China from August 20th, 20th, 20th19th. It should be pointed out that this provision also applies to overdue interest.
Four. Overdue interest
According to Article 28 of the Judicial Interpretation of Private Lending and Article 1, paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in Calculating Debt Interest during Delayed Performance (hereinafter referred to as the Judicial Interpretation of Delayed Performance Interest), the following different situations should be distinguished when dealing with overdue interest:
In addition, according to the provisions of Article 29 of the Judicial Interpretation of Private Lending, if the lender and the borrower have agreed on overdue interest rate, liquidated damages or other expenses, the lender may choose to claim overdue interest, liquidated damages or other expenses, or both, but the people's court will not support the part that exceeds four times the listed interest rate of one-year loan market when the contract is established.
Compared with the subsequent interest generated after the performance period determined by the effective legal documents, this interest belongs to the general debt interest.
Verb (abbreviation of verb) delay period of performance
Double interest on part of the debt
Article 260th of the Civil Procedure Law stipulates that if the person subjected to execution fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, he shall pay double the interest on the debt during the delayed performance. If the person subjected to execution fails to perform other obligations within the period specified in the judgment, ruling or other legal documents, he shall pay the delay in performance. Paragraph 3 of Article 1 of the above-mentioned judicial interpretation on the interest on delay in performance stipulates that the calculation method of the interest on the double part of the debt is: the interest on the double part of the debt = the monetary debt other than the general debt interest determined by the debtor's failure to perform in effective legal documents × daily 1.75‰× delay in performance. However, the first paragraph of Article 7 of this Interpretation stipulates that the interest on monetary debts that have not been fully performed at the time of implementation of this Interpretation shall be calculated according to the previous provisions during the period of delayed performance before implementation of this Interpretation; Interest on debts during the period of delayed performance after execution shall be calculated according to this interpretation. However, the Official Reply of the Supreme People's Court on How to Calculate Debt Interest during Delayed Performance (May 2009 1 1) has different provisions on the calculation of debt interest during delayed performance.
Therefore, the debt interest during the period of delayed performance should be calculated in two parts:
Part I: According to the above reply, as of 201July 3 14, the debt interest during the delayed performance period = monetary debt (including interest, etc. ) Determine by legal documents ×× benchmark interest rate of loans for the same period× 2× delayed performance period (refer to benchmark interest rate of loans for the same period of the People's Bank of China and calculate by sections according to interest rate changes).
Part II: According to the above judicial interpretation, from August 1, 2065438 to the date of completion of performance, the interest of double debt = the outstanding part of monetary debt except the interest of general debt determined by effective legal documents × daily 1.75‰× delayed performance.
The sum of the calculation results of the two parts is the debt interest to be charged during the delayed performance.
According to Article 153 of the Standard for Handling Execution Cases by People's Courts, the calculation base of debt interest during the period of delayed performance before 20 1 August 41includes debt principal, interest, penalty interest, late payment fee, liquidated damages, assessment fee, appraisal fee, announcement fee and other expenses arising from litigation or arbitration, but does not include case acceptance fee, preservation fee and other application fees.
It is worth noting that, according to Article 260th of the Civil Procedure Law, those who fail to perform the obligation to pay money within the period specified in the legal documents shall pay double the interest on the debt during the delayed performance. Double payment of debt interest or delay in performance is a legal obligation, not an agreed obligation. No matter whether there is an agreement between the two parties or whether there is a record in legal documents, as long as the circumstances stipulated in this law occur, they shall apply. That is to say, if the provisions of Article 260th of the Civil Procedure Law are quoted in the effective legal documents for execution, and the person subjected to execution fails to fulfill the obligation of paying money on schedule, the applicant for execution has the right to ask the person subjected to execution to pay.
Other problems of intransitive verbs
(1) decapitation
"beheading interest" means that the lender deducts interest from the borrower when paying the principal. Some deduct the interest of the first month in advance, and some deduct all the interest during the loan period in advance. In this regard, Article 26 of the Judicial Interpretation of Private Lending stipulates that the loan amount specified in the creditor's rights certificates such as IOUs, receipts and IOUs is generally recognized as the principal. If interest is deducted from the principal in advance, the people's court shall confirm the actual amount lent as the principal.
(2) compound interest
The so-called "compound interest", "rolling interest" and "snowballing" means that the lender calculates the overdue interest of the borrower into the principal and recalculates the interest. Calculating compound interest is the interest-bearing method used by financial institutions, and this agreement often appears in private lending.
Article 27 of Judicial Interpretation of Private Lending stipulates that after the principal and interest of the previous loan are settled, both borrowers and lenders will include the interest in the principal of the next loan and reissue the creditor's rights certificate. If the interest rate in the early stage does not exceed four times the market quotation of the one-year loan when the contract is established, the amount specified in the reissued creditor's rights certificate can be confirmed as the loan principal in the later stage. The overcharged interest shall not be used as the loan principal in the future.
According to the calculation in the preceding paragraph, if the sum of the principal and interest that the borrower should pay after the expiration of the loan term exceeds the sum of the interest of the whole loan term based on the initial loan principal and calculated according to the market quotation of the one-year loan at the time of the establishment of the contract, the people's court will not support it.
(c) Interface between old and new laws.
Article 31 of the Judicial Interpretation of Private Lending stipulates that after the implementation of these provisions, these provisions shall apply to the first-instance private lending dispute cases newly accepted by the people's courts. The people's court shall support the newly accepted first-instance private lending cases after August 20, 2020, in which the loan contract was established before August 20, 2020, and the parties requested to apply the judicial interpretation at that time to calculate the interest from the establishment of the contract to August 19, 2020; The interest from August 20, 2020 to the repayment date of the loan shall be calculated according to the interest rate protection standards set forth in these Provisions.
After the implementation of these Provisions, if the relevant judicial interpretations previously made by the Supreme People's Court are inconsistent with these Provisions, these Provisions shall prevail.
Note: "two lines and three districts" refers to the definition of lending interest rate in the judicial interpretation of 20 15 private lending. "Two lines" refer to the judicial protection line with an annual interest rate of 24% and the usury red line with an annual interest rate of 36%. That is, if the agreed interest rate exceeds the annual interest rate of 24%, the people's court will not protect it. If the lender is sued and the borrower is required to pay interest, the upper limit of judicial protection by the people's court is 24% per annum; If the lender requires the borrower to pay interest exceeding 24% of the annual interest rate, the people's court will not support it; However, the people's court will not interfere if the borrower pays interest at an annual rate of 24% to 36%. "Three zones" means: 1 judicial protection zone, that is, the interest rate agreed by both borrowers and lenders does not exceed 24% of the annual interest rate. At this time, the agreed interest rate is legal and effective, and the lender has the right to require the borrower to pay interest at the agreed interest rate. Invalid area, that is, the part where the interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36%, the interest in excess shall be deemed invalid, and the borrower has the right to demand the lender to return the interest paid in excess of the annual interest rate of 36%. 3 Natural debt area, that is, the annual interest rate agreed by both borrowers and lenders is between 24% and 36%, and the court will not protect lenders from suing for part of the interest in this area. However, if the parties are willing to perform voluntarily, the judiciary will no longer intervene, and the court will not protect the borrower if he claims to return or offset the remaining debts.