1. Interest during private lending
(1) Interest agreed by both parties
The court's determination and treatment of the agreed interest shows that the annual interest rate is below 24%, and the court supports it;
In the range of 24%-36%, the court is in a neutral position. If the parties voluntarily pay and regret taking it back, the court will not support it. On the contrary, if the lender asks for this part of interest, the court will not support it. The popular understanding is "give it, don't come back, don't give it, don't";
When the red line exceeds 36%, the court's tough attitude flashes immediately, that is, it will not support it anyway.
For details, please refer to the Provisions on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (hereinafter referred to as the Provisions).
Relevant laws and regulations:
Article 26 "If the interest rate agreed between the borrower and the lender does not exceed the annual interest rate of 24%, and the lender requests the borrower to pay interest at the agreed interest rate, the people's court shall support it. The interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36%, and the interest agreement in excess is invalid. The people's court shall support the borrower's request to the lender to return the interest paid exceeding 36% per annum. "
Article 28 "After the borrower and the borrower settle the principal and interest of the previous loan, the interest shall be included in the principal of the latter loan, and a debt certificate shall be issued again. If the early interest rate does not exceed 24% of the annual interest rate, the amount specified in the reissued debt certificate can be confirmed as the later loan principal; Excess interest cannot be included in the future loan principal. If the agreed interest rate exceeds the annual interest rate of 24%, and the parties claim that the excess interest cannot be included in the later loan principal, the people's court shall support it.
According to the calculation in the preceding paragraph, the sum of the principal and interest that the borrower should repay after the expiration of the loan term shall not exceed the sum of the initial loan principal and the interest of the whole loan term calculated at the annual interest rate of 24% based on the initial loan principal. If the lender requests the borrower to pay the excess, the people's court will not support it. "
Article 32 "The borrower may repay the loan in advance, unless otherwise agreed by the parties. If the borrower repays the loan in advance and claims to calculate the interest according to the actual loan period, the people's court shall support it. "
(2) Interest is not agreed by both parties.
1) If there is no agreed interest, the lender claims the interest within the period, and the court will not support it.
2) If the borrower repents on the grounds of unjust enrichment after voluntarily repaying the loan, the court will not support part of the interest that does not exceed the annual interest rate of 36%; More than 36% interest within the red line is always supported by the court.
Reference law:
The first paragraph of Article 25 stipulates that "if the borrower and the lender have not agreed on interest, and the lender claims to pay interest during the loan period, the people's court will not support it."
Article 31: "There is no agreed interest, but the borrower voluntarily pays or pays interest or liquidated damages exceeding the agreed interest rate, which does not harm the interests of the state, the collective and the third party. If the borrower requests the lender to return it on the grounds of unjust enrichment, the people's court will not support it, except that the borrower requests to return interest exceeding 36% per annum."
(3) The agreement between the two parties is not clear.
1) The agreement between natural persons is not clear, and the interest court will not support it during the period.
2) Except for loans between natural persons, if the interest agreement between natural persons, legal persons and other organizations is not clear, the court shall comprehensively consider the transaction mode, trading habits, market interest rate and other factors to determine the interest, that is, the final interest determined by the court, and generally calculate the interest according to the bank loan interest rate for the same period.
Reference law:
Paragraph 2 of Article 25 of the Regulations stipulates that "the people's court shall not support Party B's loan.
The activities between civil subjects always follow the basic principle of "keeping the contract". If there is a clear agreement between the borrower and the borrower, the overdue interest can be calculated according to the agreement as long as it does not exceed 24% of the annual interest rate.
Reference law:
Paragraph 1 of Article 29 stipulates that "if the borrower and the lender have an agreement on overdue interest rate, such agreement shall prevail, but the annual interest rate shall not exceed 24%."
(2) There is no agreement or the agreement is not clear.
Please note here that even if there is no agreed interest during the loan period, it will not affect the claim of overdue interest at all. Although private lending can be settled by the parties themselves as long as there is evidence, the final litigation results caused by different creditor's rights will vary widely. This is where lawyers can shine:
1) Double breach of contract, that is, there is no agreed loan term and overdue term. The court basically supported the calculation of overdue interest according to the bank loan interest rate for the same period.
2) There is no contract, that is, only the interest rate during the loan period is agreed, which is also a very common way of private lending. At this time, you can claim overdue interest according to the interest rate during the loan period.
In addition, what needs to be added here is that no matter what reason or name you claim overdue interest, liquidated damages or other expenses, the court will not support the part that exceeds the annual interest rate of 24%.
I read a lot of indictments and made a list of countless claims. I suggest that professional lawyers should explain to their clients in advance that according to the law, the court will not support the litigation request at all, and they should "haggle over every ounce" for the rights they have the opportunity to fight for and stick to it. Only in this way can they become conscientious lawyers who are truly recognized by their clients.
Reference law:
Paragraph 2 of Article 29 of the Regulations "If there is no agreement or unclear agreement on overdue interest rate, the people's court may handle it according to different circumstances:
(1) The lender claims that the borrower should pay the interest of the capital occupation period at the annual interest rate of 6% from the date of overdue repayment, and the people's court should support it because the loan term interest rate and overdue interest rate have not been agreed;
(2) If the interest rate within the loan term is agreed, but the overdue interest rate is not agreed, and the lender claims that the borrower shall pay the interest during the period of capital occupation at the interest rate within the loan term from the date of overdue repayment, the people's court shall support it. "
P> Article 30: "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 part exceeding the annual interest rate of 24% will not be supported by the people's court. "
3. Interest during the deferred performance of the debt.
After sorting out the calculation of interest and overdue interest during private lending, there are still some important problems related to it. In practice, the actual repayment date often penetrates the loan period, the performance period stipulated in the effective judgment of the court (arbitration award) and the inside and outside of the delayed performance, as shown in the following figure:
The demarcation point in the above figure is the expiration date of the performance period determined by the effective judgment of the court. The former interest is the general debt interest, that is, the interest determined by the effective legal documents, followed by the debt interest during the delayed performance, including the general debt interest during the delayed performance and the interest on the double debt part.
According to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Calculating Debt Interest during Delayed Performance (hereinafter referred to as the Interpretation), the double part of debt interest shall be calculated separately, which has nothing to do with the calculation of general debt interest.
In layman's terms, the two are "independent of each other and do not affect each other." Specifically, the general debt interest is calculated according to the base, starting and ending time and interest rate determined by the effective legal documents (of course, if it is legally agreed, the debt interest court will generally directly support it);
The calculation of interest on the doubled debt shall be based on the method specified in the Interpretation. At the same time, it should be noted that the interest base of the debt doubling part does not include the general debt interest before the start of the delayed performance period, and should be calculated according to the monetary debt other than the general debt interest determined by the effective legal documents that the debtor has not yet fulfilled, that is, based on the outstanding loan principal.
In this case:
"Debt interest during the period of delayed performance = loan principal × general debt interest rate determined by effective legal documents × actual days during the period of delayed performance × loan principal × daily 1.75× actual days during the period of delayed performance, that is,
"General debt interest before the start of the delayed performance period = loan principal × general debt interest rate determined by effective legal documents × actual days before the start of the delayed performance period, that is,
9 15 yuan =10000× 0.05 %×183;
"The monetary debt payable by the debtor is 1 1320 yuan, namely.
1 1320 yuan = 10000 yuan 405 yuan 9 15 yuan.
Reference law:
Article 253 of the Civil Procedure Law 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.
Article 1 of the Interpretation is based on the provisions of Article 253 of the Civil Procedure Law, and the interest of debts during the period of delay in performance is calculated twice, including the general interest of debts during the period of delay in performance and the double interest of some debts.
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. The calculation method of double partial debt interest is: double partial debt interest = monetary debt other than general debt interest determined by the debtor's non-performance in effective legal documents × daily 1.75‰× delay in performance.
Finally, to sum up, from the perspective of maximizing the rights of the parties, it must be the best policy to agree on a legal loan interest rate (that is, general debt interest), which will run through the loan period, the performance period stipulated by the court's effective judgment (arbitral award) and the delayed performance period. When there is overdue recourse to the court, the litigation request should not be blind, not to mention the more the better.
We should protect the rights of the parties on the basis of legalization, and strive to maximize the interest on general debts from the date of payment. As for the statutory time limit for delay in performance, the agreement is invalid, so just follow it.
Typesetting: Sun Li
Audit: Yin Xiufeng
Related questions and answers: How to calculate the loan interest? According to the law of our country, the interest of private lending is generally embodied in the principle of autonomy of will, that is, the interest is agreed by both parties through voluntary consultation. As long as it is within the scope prescribed by law, the law is allowed and protected.
If there is no agreement or unclear agreement on interest between the two parties, it shall be deemed that interest is not paid. In addition, national laws restrict high interest rates, and the maximum interest rate for private lending shall not exceed four times the bank interest rate.
The benchmark interest rate for one-year loans of financial institutions was lowered by 0.4 percentage points to 5.6%; The benchmark interest rate for one-year deposits was lowered by 0.25 percentage point to 2.75%. At the same time, the upper limit of the floating range of deposit interest rate of financial institutions is adjusted from 1. 1 times of the benchmark deposit interest rate to 1.2 times.
The benchmark interest rates of other grades of loans and deposits are adjusted accordingly, and the term grades of benchmark interest rates are appropriately degenerate. (This interest rate is the latest bank interest rate of 20 15, which is the new benchmark interest rate for bank deposits and loans.
Extended data:
First, the calculation method
In the financial analysis of the project, the interest of the working capital loan is calculated according to the simple interest. No matter when the loan occurs, it is assumed that the interest is borrowed at the beginning of the year. In addition, because the working capital is used for turnover, it is generally assumed that the working capital loan will not be returned during the production and operation period, but will be returned once at the end of the project. Therefore:
Annual interest rate of working capital loan = accumulated working capital loan in the current year × annual interest rate of working capital loan.
explain
Taking a project as an example, it is estimated that the new working capital loan for this project is 3,305,900 yuan in the third year and 3 1. 1.20 million yuan in the fourth year, totaling 36 1.7 1.00 million yuan, so the interest of working capital loan for each year is:
Third year: 330.59× 8.64% = 28.56 (ten thousand yuan)
4 to 14 years: (330.59+31.12) × 8.64%-31.25 (ten thousand yuan)
Second, long-term loans.
calculate
In order to simplify the processing, when calculating the principal and interest of long-term loans, it is assumed that every year's loans occur in the middle of the year, so the interest is calculated only half a year, and the repayment occurs at the end of the year; The outstanding principal of this year and the loans of previous years form the "loan accumulation at the beginning of next year", and the interest is calculated on an annual basis. Thus, the approximate formula for calculating the annual accrued interest is as follows:
Accrued interest per year = (accumulated loan principal at the beginning of the year+loan amount this year /2)× annual interest rate.
explain
A project only borrowed 5.5 million yuan in the second year of the construction period, with an annual interest rate of 9.9%. If the project is put into production in the third year, then
The accrued interest in the second year is: (0+550/2)×9.9%=27.23 (ten thousand yuan).
The accrued interest in the third year is: (550+27.23+0/2) × 9.9%-57.15 (ten thousand yuan).
Related questions and answers: How to calculate interest on personal loans? Thank you for your attention to Beijing Dezhong legal consultation, and the professional legal rights protection team provides you with legal services. I'm happy to answer your question:
1. Legitimacy of interest agreement:
If there is no agreed interest on the loan between natural persons, it shall be deemed as interest-free.
If the lender requests the borrower to pay interest at the agreed interest rate, the people's court shall support it.
Interest greater than 24%-36% is a natural debt, and interest cannot be enforced. The borrower can refuse to pay more than 24%, but if it has voluntarily repaid, it has no right to demand the return.
More than 36% of the interest is illegal, and the court will not support it. If it is repaid, it can request a refund.
Calculation of interest
1. Is your repayment method one-time repayment of principal and monthly interest settlement or equal repayment of principal and interest? Private lending is generally a one-time settlement of principal and interest.
2. Whether the two parties have an agreement on interest rate changes and whether to implement the latest loan interest rate.
3. The annual interest rate is expressed in%, and the monthly interest rate is expressed in microns.
4. Simple interest formula F=P( 1+I*N), p: principal I: interest rate n: integer multiple of interest rate acquisition time.
5. Interest can be agreed, and the principal plus interest after the first repayment period can be used as the principal of the second repayment period. However, the total annual interest shall not exceed 24% of the original loan principal.
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