When trying loan cases, the people's courts should follow the principles of voluntariness, mutual benefit, fairness and legality, protect the legitimate rights and interests of creditors and debtors, and limit high interest rates. According to the experience of trial practice, the following opinions are put forward for reference when trying such cases.
Extended data
One is to accept the loan disputes between citizens, between citizens and legal persons, and between citizens and other organizations as loan cases.
Two, because of the loan of foreign currency, Taiwan dollars and treasury bonds and other securities disputes to the court, should be accepted as a loan case.
Three, for the loan relationship is clear, and the creditor applies for a payment order, the people's court shall examine and accept it in accordance with the relevant provisions of the Civil Procedure Law on supervision procedures.
Four, the people's court to review the prosecution of loan cases, according to the provisions of Article 108th of the Civil Procedure Law, the plaintiff should be required to provide a written loan; If there is no written receipt, the necessary factual basis shall be provided, and the prosecution that does not meet the above conditions shall be ruled inadmissible.
Five, when the creditor sued, the debtor's whereabouts are unknown, under the jurisdiction of the court where the debtor's original domicile or property is located. The court shall require the creditor to provide evidence to prove the existence of the loan-loan relationship, announce and summon the debtor to respond to the lawsuit after acceptance. If the debtor still fails to respond to the lawsuit at the expiration of the announcement period and the loan-loan relationship is clear, the judgment may be made by default after trial; If the loan-loan relationship cannot be ascertained, the lawsuit shall be suspended.
During the trial, if the debtor leaves, his whereabouts are unknown and the loan relationship is clear, he may make a judgment by default; If the facts are difficult to ascertain, the proceedings shall be suspended.
Six, the interest rate of private lending can be appropriately higher than the bank interest rate, the local people's courts can specifically grasp according to the actual situation in the region, but the maximum shall not exceed four times that of similar bank loans (including interest rates). Beyond this limit, the excess interest will not be protected.
Seven, the lender shall not include interest in the principal to seek high profits. If it is found during the trial that the creditor included the interest in the principal to calculate compound interest, if the interest rate exceeds the limit stipulated in Article 6, the excess interest will not be protected.
8. If there is a dispute between the borrower and the lender on whether there is an agreed interest rate, and it cannot be proved, the interest can be calculated with reference to the bank's similar loan interest rate.
If there is a dispute between the borrower and the borrower over the agreed interest rate, which cannot be proved, the interest may be calculated with reference to Article 6 of this opinion.
Nine, regular interest-free loans between citizens, the lender requires the borrower to pay overdue interest, or irregular interest-free loans have not been repaid after collection, and the lender requires to pay the interest after collection, the interest can be calculated with reference to the bank's similar loan interest rate.
Ten, one party by means of fraud, coercion or take advantage of others' danger, so that the other party violates the true meaning of the loan relationship, should be considered invalid. If the loan relationship is invalid due to the creditor's behavior, only the principal will be returned; If the debtor's behavior causes an invalid loan relationship, in addition to returning the principal, interest should also be paid with reference to the bank's similar loan interest rate.
Eleven, the lender knows that the borrower is borrowing for illegal activities, and its lending relationship is not protected. The illegal lending behavior of both parties can be punished in accordance with the provisions of Paragraph 3 of Article 134 of the General Principles of Civil Law and Articles 163 and 164 of the Opinions on Several Issues Concerning the Implementation of the General Principles of Civil Law of People's Republic of China (PRC) (for Trial Implementation).
Twelve, due to disputes between citizens to borrow foreign currency and Taiwan dollars, the lender requires repayment in the same currency, can be allowed. If the borrower does not have the same currency, it can be repaid in RMB with reference to the local foreign exchange adjustment price at the time of repayment. If the lender requests to repay the interest, it may calculate the interest with reference to the foreign currency savings rate of China Bank at the time of repayment.
Disputes arising from borrowing foreign exchange certificates shall be handled with reference to the above principles.
Thirteen, in the loan relationship, the person who only plays the role of contact and introduction does not bear the guarantee responsibility. If there is a real intention to guarantee the performance of the debt, it shall be recognized as a guarantor and bear the guarantee responsibility.
Fourteen, the actor in the name of the borrower to issue a loan, the borrower does not admit, and the actor can not prove, the actor shall bear civil liability.
15. During the partnership operation, if an individual borrows money in the name of a partnership organization for the partnership operation, it shall be repaid by the partners. If the borrower cannot prove that the loan is used for partnership operation, it shall be repaid by the borrower.
Sixteen, the guarantor's loan debt expires, the debtor has the ability to pay off, and the debtor shall bear the responsibility; If the debtor is unable to pay off, has insufficient solvency or the debtor's whereabouts are unknown, the guarantor shall be jointly and severally liable.
If the debtor fails to repay the debt at the expiration of the loan period, and the borrower and the lender reach an agreement on the repayment period or interest rate again without the consent of the guarantor, the guarantor will no longer bear the guarantee responsibility.
Without a guarantor, the court shall not allow the debtor to apply for a new guarantor to participate in the lawsuit.
Disputes over guarantee liability shall be handled in accordance with Articles 108, 109, 1 10 of the Opinions (for Trial Implementation).
Seventeen, when trying a loan case, the legal mortgage relationship arising from the loan relationship should be protected. In case of dispute, the dispute shall be settled in accordance with Item 2 of Article 89 of the General Principles of Civil Law and paragraphs 1 12, 1 13, 1 14 and/kloc-0 of the Opinions (for Trial Implementation) respectively.
18. If the debtor is likely to transfer, sell off or conceal the property related to this case, the court may take property preservation measures such as sealing up, distraining, freezing and ordering to provide guarantee according to the application of the parties or ex officio. If the preserved property is the means of production, the applicant shall be ordered to provide a guarantee. Property preservation should take appropriate measures according to the nature of the preserved property, minimize the impact on production and life, and avoid property losses.
Nineteen, the debtor has difficulty in repaying the loan, the court may make a judgment or mediation by installment. Determine the amount of each payment according to the ability of both parties to pay.
20. In the execution procedure, if both parties negotiate to pay off the debt by the debtor's labor service or other means, which does not violate the law and does not harm the interests of society and others, they shall allow it and record the implementation of the settlement agreement.
Twenty-one, the person subjected to execution has no money to pay off his debts and demands to pay off his debts with other property. If the application is approved by the person subjected to execution, it shall be allowed. Both parties may agree on the price or require the relevant departments to set a reasonable price and deliver the corresponding part of the property to the applicant executor according to the amount of the judgment.
Twenty-two, the person subjected to execution may transfer, sell or conceal the property under execution, it shall take enforcement measures in a timely manner. If the person subjected to execution resists execution, which constitutes obstruction of civil litigation, it shall be handled in accordance with the provisions of Articles 102 and 227 of the Civil Procedure Law.
References:
Some opinions on the trial of loan cases by people's courts-Baidu Encyclopedia