1. The principal, the entrusted bank and the borrower sign an entrusted loan contract, the essence of which is private lending between the principal and the borrower. The validity of the entrusted loan contract, the rights and obligations between the principal and the borrower, such as interest, overdue interest and liquidated damages. , applicable to the relevant laws, regulations and judicial interpretations of private lending.
Two. According to Article 402 of the Contract Law of People's Republic of China (PRC), the borrower knows that there is an agency relationship between the principal and the entrusted bank when signing the contract, and the entrusted loan contract directly binds the principal and the borrower. As the plaintiff, the customer can directly ask the borrower for repayment.
Brief introduction of case
1.2065438+On September 27th, 2003, Changfu Fund, Industrial Bank Wuhan Branch and Zhongsenhua Real Estate Company signed the Entrusted Loan Contract, stipulating that Changfu Fund entrusted Industrial Bank Wuhan Branch to lend Zhongsenhua Real Estate Company RMB 630 million, with a loan period of four years. The loan interest rate from the first year to the third year is annual interest rate 16%, and the loan interest rate in the fourth year is annual interest rate 18%, and the interest will be settled in natural quarters. As stipulated in the contract, if the borrower fails to repay the principal and interest as stipulated in the contract, the penalty interest will be charged at a rate of 50% higher than the loan interest rate. In addition, if the borrower breaches the contract, the customer can cancel the contract, recover the loan in advance, and ask the borrower to bear the necessary expenses.
2. Changfu Fund filed a lawsuit with Hubei High Court, arguing that Zhongsenhua Real Estate failed to perform the contract as agreed, requesting to terminate the contract as agreed, and demanding Zhongsenhua Real Estate to bear the liability for breach of contract and pay liquidated damages. The Higher People's Court of Hubei Province holds that the three parties are entrusted loan contracts, and Changfu Fund can directly claim rights from Zhongsenhua Real Estate Company in its own name. The court supported Changfu Fund's request to cancel the contract and repay in advance, but it did not support the interest and liquidated damages exceeding 24%.
3. Changfu Fund refused to accept the original judgment and appealed to the Supreme Court for additional judgment. Senhua Real Estate Company bears the penalty of RMB 65.438+0.26 billion. Senhua Real Estate Company also filed an appeal, arguing that Changfu Fund was not a qualified plaintiff as stipulated in the contract, requesting to cancel the original judgment and dismiss the lawsuit. The Supreme Court did not support both parties' appeals.
Main opinions and ideas of referees
The focus of the dispute in this case includes: whether Changfu Fund is a qualified plaintiff in this case, and how to calculate the liquidated damages and interest.
Before solving the above two controversial issues, the Supreme Court first defined the entrusted loan contract and identified the legal relationship between the parties as a private lending relationship. Changfu Fund, Industrial Bank Wuhan Branch and Zhongsenhua Real Estate Co., Ltd. signed an entrusted loan contract, stipulating that Changfu Fund would provide funds. Wuhan Branch of Industrial Bank issues loans according to the borrower, purpose, amount, currency, term and interest rate determined by Changfu Fund, and assists in supervising the use and recovery of loans. Industrial Bank Wuhan Branch will charge the agency entrusted loan fee and will not bear the credit risk. Therefore, the nature of the contract is essentially a private loan between Changfu Fund and Zhongsenhua Real Estate Company. The validity of the entrusted loan contract between Changfu Fund and Zhongsenhua Real Estate Company and the agreed rights and obligations shall be governed by the relevant laws, regulations and judicial interpretations on private lending.
Regarding whether Changfu Fund is a qualified plaintiff in this case, the Supreme Court held that: First, according to Article 402 of the People's Republic of China (PRC) Contract Law, Zhongsenhua Real Estate Company knew the agency relationship between Industrial Bank Wuhan Branch and Changfu Fund when signing the contract, and the entrusted loan contract directly bound Changfu Fund and Zhongsenhua Real Estate Company. Secondly, the agreement that "the trustee can file a lawsuit against the borrower in the name of the trustee according to the written request of the principal" in the contract and the stipulation that "the principal can file a lawsuit against the defendant and the borrower can file a lawsuit against a third party" in the Reply of the Supreme People's Court on how to determine the qualifications of the parties to the entrusted loan agreement are all aimed at protecting the rights of the principal. It cannot be understood that Changfu Fund cannot bring a lawsuit against the borrower, so it does not support Zhongsen Real Estate Company's claim that Changfu Fund is not suitab.
On the issue of how to calculate the liquidated damages and interest, the Supreme Court held that Changfu Fund claimed the liquidated damages of 65.438+0.26 billion yuan according to the contract on the basis of the original judgment that the annual overdue interest rate was 24%, essentially requiring the overdue penalty interest to go hand in hand with the fixed liquidated damages. As the losses suffered by Changfu Fund due to Zhongsenhua Real Estate Company's breach of contract were mainly interest losses, and the losses did not significantly exceed the overdue interest, it was not supported to request 65.438+0.26 billion yuan of liquidated damages again.
Summary of practical experience
1. The nature of entrusted loan contract is essentially private lending, not financial lending. In practice, there are different understandings of this issue, and the Supreme Court has also made a completely opposite judgment 2. Since this case was published as an announcement case, the court has basically reached a unified understanding of this issue, that is, entrusted loans should be recognized as private lending. Therefore, the validity of the contract and the rights and obligations of all parties should be regulated by the relevant laws, regulations and judicial interpretations of private lending.
2. The trustor may directly claim the rights from the borrower without going through the trustee. According to the Supreme People's Court's Reply on How to Determine the Qualification of the Parties in the Disputes over Entrusted Loan Agreements, the client can choose to take the entrusted bank as the defendant and the borrower can participate in the litigation as a third party. In addition, according to Article 402 of People's Republic of China (PRC) Contract Law, the borrower knows the principal-agent relationship between the bank and the principal when signing the contract, so the loan contract has direct effect between the principal and the borrower. If the borrower fails to pay off the loan, the principal may directly claim the principal and interest from the borrower. Therefore, from the perspective of saving litigation costs, it is suggested that the client directly sue the borrower for debt repayment.
3. When the customer demands repayment from the borrower, he should rationally claim the amount of liquidated damages and interest. For the parties to a contract, the determination of the nature of the contract will have a great impact on the effectiveness of the contract and the content of rights and obligations between the parties. The interest rate, penalty interest and loan term of the financial management contract shall comply with the provisions of the General Principles of Loans and the Notice of the People's Bank of China on Issues Concerning the Interest Rate of RMB Loans; On the contrary, private lending should strictly abide by Article 30 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases, and the annual interest rate should not exceed 24%. At present, the court defines the entrusted loan contract as a private loan between the client and the lender, so the client should try not to claim liquidated damages or interest exceeding 24% of the annual interest in the lawsuit to prevent expensive and unnecessary litigation costs.
Relevant laws and regulations
Contract law of the people's Republic of China
0030 10 (French interpretation [20 15]No. 18)
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Reply of the Supreme People's Court on how to determine the qualification of the parties in the dispute over the entrusted loan agreement (Fa Fu [1996] No.6)
General Rules for Loans (Order of the People's Bank of China [1996 No.2])
The following is the discussion on this issue in the "We think" part of the court ruling:
We believe that in this case, Changfu Fund, Industrial Bank Wuhan Branch and Zhongsenhua Real Estate Company signed an entrusted loan contract, with Changfu Fund providing funds, Industrial Bank Wuhan Branch issuing, assisting in supervising the use and recovery of loans on behalf of borrowers, uses, amounts, currencies, maturities and interest rates, and Industrial Bank Wuhan Branch charged the entrusted loan fees and did not bear credit risks. The essence is the private lending between Changfu Fund and Zhongsenhua Real Estate Company. The validity of the entrusted loan contract between Changfu Fund and Zhongsenhua Real Estate Company and the agreed rights and obligations should be regulated by relevant laws, regulations and judicial interpretations of private lending. The Supreme Court has seriously studied and implemented the Supreme People's Court's question about whether Changfu Fund is a qualified plaintiff in this case. Our court holds that, firstly, Article 402 of the People's Republic of China (PRC) Contract Law stipulates that "a contract concluded by a trustee in his own name with a third party within the scope of authorization of the principal, if the third party knows the agency relationship between the trustee and the principal at the time of conclusion of the contract, the contract directly binds the principal and the third party, unless there is definite evidence to prove that the contract only binds the trustee and the third party. "Zhongsenhua Real Estate Company 20 13 September 27th? The behavior and contents of signing the Entrusted Loan Contract with Changfu Fund and Industrial Bank Wuhan Branch show that Zhongsenhua Real Estate Company knew the agency relationship between Industrial Bank Wuhan Branch and Changfu Fund when signing the Entrusted Loan Contract, and Zhongsenhua Real Estate Company did not provide evidence to prove that the Entrusted Loan Contract only bound Industrial Bank Wuhan Branch and Zhongsenhua Real Estate Company. Therefore, the entrusted loan contract directly binds Changfu Fund and Zhongsenhua Real Estate Company, so the original judgment was made. Secondly, Article 1.4 of the Entrusted Loan Contract stipulates that "when the borrower fails to repay the principal and interest on schedule, the trustee shall file a lawsuit against the borrower, guarantor and relevant personnel in the name of the trustee", which is the commitment of the trustee, Industrial Bank Wuhan Branch, to the trustor Changfu Fund, and is only binding on the Industrial Bank Wuhan Branch and Changfu Fund, and has nothing to do with Zhongsenhua Real Estate Company; As far as the content of the agreement is concerned, whether to take Industrial Bank Wuhan Branch as the plaintiff to file a lawsuit against the borrower, guarantor and related personnel is the right given to Changfu Fund by the agreement, not the obligation to restrain its behavior. Changfu Fund can file a lawsuit on its own or ask the trustee, Industrial Bank Wuhan Branch, to file a lawsuit. In addition, the Supreme People's Court's "Reply on How to Determine the Qualifications of Litigants in Disputes over Entrusted Loan Agreements" replied to the relevant questions asked for instructions, "In the process of fulfilling the entrusted loan agreement, if there is a dispute due to the borrower's failure to return the loan on time, the lender (trustee) may bring a lawsuit to the people's court on the grounds of the loan contract dispute; If the lender insists on not bringing a lawsuit, the client may entrust the trustee of the loan agreement as the defendant and the borrower as the third party to bring a lawsuit to the people's court. "The reply stipulates that the client can file a lawsuit as a plaintiff, which clarifies the defendant status of the trustee and aims to protect the rights of the client. Zhongsenhua Real Estate Company claims that Changfu Fund is not a qualified plaintiff in this case according to the aforementioned agreement and reply, which is a misunderstanding of the contract agreement and reply and cannot be established. ?
On penalty interest and liquidated damages. Although according to the Supreme People's Court's case on carefully studying and executing the entrusted loan contract dispute between the Supreme People's Court Beijing Changfu Investment Fund and Wuhan Zhongsenhua Century Real Estate Development Co., Ltd. [People's Republic of China (PRC) the Supreme People's Court Announcement * * and the Supreme People's Court AnnouncementNo. 1 1 (No.24 1)],
Extended reading
Regarding the determination of entrusted loan contract and the validity judgment of entrusted loan contract, the author retrieved relevant cases for readers' reference.
First, the three parties signed an entrustment contract and a loan contract respectively, and the contents of the two contracts are slightly different, which does not affect the relationship between the two parties and is defined as an entrustment loan contract.
Case 1: Beijing Hengdilong Real Estate Development Co., Ltd. and Shenzhen Storco Investment Co., Ltd. [the Supreme People's Court (20 18) the Supreme People's Court No.339] The court held: "First, does the way of signing the contract affect the determination of the nature of the contract? Entrusted loan refers to the loan provided by the principal, which is issued, supervised and recovered by the loan bank (i.e. the trustee) according to the loan object, purpose, fund term and interest rate determined by the principal. Loans whose rights and obligations between the parties meet this condition can be identified as entrusted loans. Whether the contract is signed by three parties or two parties separately does not affect the determination of the nature of the contract. The entrustment contract and loan contract involved are clear, and Nanning Branch of China Merchants Bank is entrusted by Storco Company to issue entrusted loans to Hengdilong Company. ? After all, the matters agreed in the entrustment contract and the loan contract have their own emphases, that is, the former is aimed at the entrustment relationship between the principal and the trustee, while the latter is aimed at regulating the loan relationship between the lender (trustee) and the borrower. Even though the loan contract advocated by Hengdilong Company clearly stipulates that Nanning Branch of China Merchants Bank has the right to charge penalty interest for overdue repayment, there is no such content in the entrustment contract, and it is not appropriate to think that the contents of the two contracts are inconsistent, and further think that the two contracts are inconsistent. To say the least, even if the lender (trustee) does not sign a loan contract with the borrower in full accordance with the entrustment contract, it only makes the trustee bear the corresponding liability for breach of contract to the principal. This situation does not affect the establishment of the entrusted loan relationship, nor does it prevent the client from making corresponding claims to the borrower according to the loan contract. "
Two, the entrusted loan contract does not violate the "People's Republic of China (PRC) contract law" article fifty-second and "the Supreme People's Court on the application of law in the trial of private lending cases". The contract is valid without other invalid reasons.
Case 2: the financial loan contract dispute between Hunan Xianghui Asset Management Co., Ltd. and Anhui Investment Group Holding Co., Ltd. [the Supreme People's Court (20 16) the Supreme People's Court No.790] The court held that: "According to Article 7 of the General Rules for Loans of the People's Bank of China, entrusted loans refer to funds provided by clients such as government departments, enterprises, institutions and individuals, and are provided by lenders (namely trustees). As stipulated in the entrusted loan contract, Anhui Investment Group agrees and entrusts CCB Shushan Sub-branch to issue entrusted loans to Xianghui Company according to its business needs and loan application, which belongs to entrusted loan business. This contract is the true intention of the parties concerned, and it does not violate the provisions of Article 52 of the Contract Law and shall be valid. Xianghui Company claimed that the entrusted loan contract was invalid on the grounds that Anhui Investment Group operated the loan business, the case involved the entrusted loan contract that harmed the public interests, and the business involved was not a temporary loan between enterprises. The court did not support it. "
Related questions and answers: What is the concept of entrusted loan? The concept of entrusted loan:
Loans provided by principals such as government departments, enterprises, institutions and individuals, issued, supervised and recovered by lenders (i.e. trustees) according to the loan object, purpose, amount, term and interest rate determined by the principals. Lenders only charge fees and do not bear loan risks.
Analysis:
That is to say, there are two ways for A to give money to B. One way is that A entrusts a bank to lend money, and the bank looks for B. The bank collects intermediary business fees and account management fees, and A gets higher interest than the bank and B gets the money. The other is that AB entrusts the bank to become an intermediary to legalize the loan, and the bank charges a handling fee, and A gets the agreed interest and B gets the money.
Extended data:
Application conditions:
The trustor and the lender shall be enterprises (institutions), other economic organizations, individual industrial and commercial households or natural persons with full civil capacity approved and registered by the administrative department for industry and commerce (or competent authorities); A settlement account has been opened in a commercial bank; The source of entrusted funds must be legal and have independent control; To bid for entrusted loans, you must bear the loan risks alone; Pay taxes according to the relevant requirements of the State Local Taxation Bureau, and cooperate with the trustee to collect and remit taxes; Meet other requirements of commercial banks.
The term of entrusted loan shall be determined by the client according to the borrower's loan purpose, repayment ability or the specific circumstances of entrusted loan; In entrusted loans, the entrusted loan interest rate involved shall be determined by the entrusting party, but it shall not exceed the loan interest rate and floating range for the same period stipulated by the People's Bank of China. Since 2004, the floating range of the loan interest rate of commercial banks has been expanded to (0.9, 1.7), that is, the lower limit of the loan interest rate of commercial banks to customers is the benchmark interest rate multiplied by the lower limit coefficient of 0.9, and the upper limit is the benchmark interest rate multiplied by the upper limit coefficient of 1.7. Financial institutions can determine their own floating interest rates within the scope stipulated by the People's Bank of China.