1. In the past judicial practice, the guarantor was often judged to be responsible for repaying the principal and interest.
In a non-smoking case, the borrower is suspected of a non-smoking crime or is found to be a non-smoking crime by an effective judgment, and the loan relationship between the lender and the borrower and the guarantee relationship between the lender and the guarantor are truly established. The current law adopts the procedural treatment mode of "separation of civil and criminal", that is, the borrower is suspected of non-smoking crime or is recognized as a non-smoking crime by an effective judgment, which is only a negative evaluation of the borrower's behavior in violation of relevant mandatory provisions by the criminal law. Whether the loan relationship between the lender and the borrower and the guarantee relationship between the lender and the guarantor are typical civil legal relationships should be evaluated according to the civil law. If the agreement reached between the parties on loan and guarantee is true and voluntary, and does not harm the interests of the state, the collective, the public or the third party, and there is no legal situation in which the contract is invalid, the autonomy of the parties shall be respected, and the corresponding loan contract and guarantee contract shall be deemed to be true and effective.
Therefore, Article 8 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases clearly gives the lender the right to directly sue the guarantor. On the premise that both the loan contract and the guarantee contract are valid, in the past practice, it tends to assume that the guarantor bears all the guarantee responsibilities, that is, the guarantor bears all the principal and legitimate interests of the lender to protect the rights and interests of creditors.
(1) Wu v. Chen, Wang Kexiang and Deqing Real Estate Development Co., Ltd. (the Supreme People's Court GazetteNo. 1 1).
Referee's gist: From the legal analysis of upholding the principles of honesty, credit and fairness, it will lead the guarantor to defend his guarantee responsibility on the grounds of invalidity, that is, to take his own guarantee error as the defense reason for not taking responsibility, which is unfair in essence, even less conducive to protecting uninformed creditors and unable to maintain honesty and fairness. It is a way to reduce the loan risk that the creditor requires the debtor to provide a guarantor. When the guarantor agrees to provide a guarantee, it shall be presumed that he is fully aware of the consequences of the act. If the loan contract is deemed invalid because the debtor is suspected of illegally absorbing public deposits, according to the provisions of the Guarantee Law of People's Republic of China (PRC), the guarantee contract under the premise that the main contract is invalid should also be invalid, and the guarantor can be exempted from the guarantee liability. Creditors' efforts to reduce the loan risk have not produced any effect, resulting in de facto unfairness.
(2) the Supreme People's Court (20 14) Min Er Zhong ZiNo. 142 Qu Zhijun v. Dalian Beifu Group Co., Ltd. and Dalian Tianxing Real Estate Development Co., Ltd..
Referee points: The loan agreement involved is legal and valid, and the loan relationship is true. The borrower's failure to repay the loan as agreed in the agreement constitutes a breach of contract. There are corresponding facts and legal basis for the lender to ask the borrower to repay the loan principal and interest, and the guarantor is also jointly and severally liable for repaying the loan principal and interest.
(III) Civil ruling on retrial review and trial supervision of contract disputes guaranteed by Ceng Hao and Li Yong Sichuan Higher People's Court (20 16) Chuanmin No. 180 1.
Referee's gist: the borrowing behavior between the parties in this case is the true intention of the parties, which does not harm the legitimate interests of the state, the collective and the third party, and there is no situation of "covering up the illegal purpose in a legal form", so the borrowing behavior is legal and effective, and the civil act of guarantee based on the loan contract is also effective. There is nothing wrong with the original judgment that the guarantor assumes the responsibility of repaying the principal and interest.
(4) Deyang Tian Yun Culture Development Co., Ltd. and Liu Tinghui's civil ruling on retrial review and trial supervision of private lending disputes. Sichuan Higher People's Court (20 17) Chuan Min ShenNo. 1724.
Referee's gist: The crime of illegally absorbing public deposits and the private loan contract, the former is an act carried out by one party, and the latter is an act carried out by both parties, which are evaluated by criminal law and civil law respectively. In this case, the validity of private loan contract and guarantee contract should be judged according to the relevant provisions of People's Republic of China (PRC) Contract Law. In this case, the private loan contract and the guarantee contract are not invalid as stipulated in Article 52 of the Contract Law of People's Republic of China (PRC) and Article 14 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Loan Cases, but should be valid. The surety shall bear the suretyship liability stipulated in the suretyship contract.
(5) the Supreme People's Court (20 18) the Supreme People's Court Shen Zi No.6141Opinions on the retrial review and trial supervision of the guarantee contract disputes between Yan 'an Construction Corporation and Zhao.
Referee's main points: As the loan contract involved does not violate the provisions of Article 52 of People's Republic of China (PRC) Contract Law and Article 14 of Judicial Interpretation of Private Lending, it should be a valid contract. The guarantor's claim that the main contract and the guarantee contract are invalid cannot be established. The guarantor shall repay the borrower's loan principal and interest.
Two, the Supreme Court and the Hebei Provincial High Court issued a new signal on the scope of responsibility of the guarantor.
(1) the Supreme People's Court believes that the high interest earned by participants in the smoking ban case by trying to deposit their deposits in the borrowing company is not protected by law and cannot be legalized through the transfer and assignment of creditor's rights. The new debtor who accepts the corresponding debt will not bear the corresponding interest arising therefrom.
On February 2, 2002/kloc-0, the Supreme People's Court made a civil ruling of (2020) the Supreme People's Court No.5587 on retrial review and trial supervision, arguing that in the civil judgment of (20 19) Yudi 16 17 made by Henan Higher People's Court, Peng Chun and others 17 people were convicted in the original company (although the existing evidence can prove the authenticity of the transfer of creditor's rights and debts between the parties, it can be concluded that the transfer of creditor's rights or debts has been established, and the basic creditor's rights enjoyed by Peng Chun and others 17 people to Xin Zhe company are the deposit principal and its fruits. Peng Chun and others 17 people are participants in the case of illegally absorbing public deposits. The high interest they tried to obtain by depositing their deposits in Xin Zhe company is not protected by law, and cannot be legalized through the transfer and assignment of creditor's rights. The Henan Provincial High Court ruled that it was inappropriate for Xinxin Company to calculate interest at a monthly interest rate of 2% in addition to the principal, and ordered the Henan Provincial High Court to retry the case.
Unfortunately, after the author inquired about the China Judgment Document Network, the civil judgment of (202 1) Yu Minzai 148 made by the Henan Provincial High Court was not published. Judging from the contents disclosed in the civil ruling on the action of execution objection related to this case ((202 1) Yu Minzhong No.892), the new judgment of Henan Higher People's Court confirmed that Xinxin Company, as the new debtor of the transferee's creditor's rights, only needs to bear the debt principal without paying the corresponding interest.
Although the scope of responsibility of the corresponding guarantor was not mentioned in this case, from the theoretical analysis of civil law, the biggest feature of the guarantee contract is its subordination-the main debt is not established or takes effect, and the secured debt is not established or takes effect; When the principal debt is transferred, the guaranteed debt is also transferred; When the principal debt is fulfilled or partially fulfilled, the guaranteed debt will be eliminated or reduced accordingly. Therefore, the scope of guarantee liability should be limited to the scope of main debt liability. Otherwise, the guarantor will not be able to fully recover from the principal debtor after taking responsibility, which violates the legislative spirit of establishing the guarantee system and excessively infringes on the legitimate rights and interests of the guarantor.
(2) The Higher People's Court of Hebei Province held that although the loan contract and guarantee contract were found to be valid in the non-smoking case, the scope of the borrower's liability had been forcibly assessed by the criminal law, and it was reduced to the principal without interest. Therefore, no matter from the point of view of the consistency between the principal debt and the subordinated debt, or based on the principle of fairness, or in order to avoid the conflict between the criminal and the people, the secured debt as subordinated debt does not contain interest.
On August 3, 20021,the Higher People's Court of Hebei Province made a civil judgment of (202 1) Jimin Zaizi. 1 15. It is considered that the loan contract and guarantee contract involved in the case are the true intention of the parties and do not violate the mandatory provisions of laws and administrative regulations, and should be considered as valid. However, Article 64 of the Criminal Law stipulates that all the illegal money obtained by criminals shall be recovered or ordered to make restitution. Article 5 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Fund-raising stipulates: "Illegal absorption of public funds is illegal income. Returns such as interest and dividends paid to fund-raising participants who absorbed funds, as well as agency fees, benefits, kickbacks, commissions and commissions paid to personnel who helped absorb funds, shall be recovered according to law. If the principal of the fund-raising participant has not been returned, the returned principal may be offset. According to the above provisions, the unabsorbed principal and agreed interest have been identified as "illegal income" from the summary of the property involved, and the paid interest should be recovered and offset against the principal as appropriate. That is, from the perspective of the application of criminal law, the borrower does not bear the responsibility of repaying the agreed interest. The biggest feature of guarantee contracts such as guarantee contracts is subordination. The guarantee contract is subordinate to the loan contract, and the guarantee responsibility is subordinate to the main debt. This determines that the secured debt, whether established or effective, whether transferred or changed, is attached to the main debt. The scope of repayment of principal debt does not include interest, and the scope of guarantee responsibility should not include interest. To sum up, although the guarantee contract involved is valid, the scope of the borrower's liability has been forcibly assessed by the criminal law, and it has been reduced to the principal without interest. Therefore, no matter from the point of view of the consistency between the principal debt and the subordinated debt, or based on the principle of fairness, or in order to avoid the conflict between the criminal and the people, the secured debt as the subordinated debt does not contain interest. The Hebei Provincial High Court finally ruled that the guarantor in this case only bears the loan principal of the non-smoking participants and does not need to bear any interest.
Third, the conclusion
In the early years, due to the large number of people involved and the pressure of maintaining stability, money lenders were generally regarded as "victims", and even some cases were finally paid by local governments. With the continuous outbreak of non-smoking cases, in recent years, the role of "victim" in non-smoking cases no longer exists, and the identity of lenders has evolved into "participant" (in some areas, the name of "victim" is still used in practice, but it should be understood as "participant" according to the spirit of corresponding laws). Because the criminal legislation of smoking ban cases is intended to maintain the order of financial management and crack down on illegal financial business activities, and the property rights of participants are not among the legal interests protected. Therefore, the law stipulates that non-smoking participants should be responsible for their own investment losses, and the case-handling organ has no legal obligation to recover losses for them. But this does not affect lenders to protect their legitimate rights and interests through civil procedures.
However, whether the guarantor should bear the corresponding loan interest in civil litigation is controversial in both theoretical and practical circles. One view is that, on the premise of confirming the authenticity and validity of the guarantee contract, according to the true expression of intention between the parties and the principle of good faith, the guarantor should bear the guarantee responsibility for the loan interest in strict accordance with the provisions of the guarantee contract, so as to realize "God returns to God, Caesar returns to Caesar" in criminal proceedings and civil proceedings. Another view is that although the guarantee contract in the non-smoking case is deemed valid, considering that the corresponding interest has been deemed as "illegal income" by the criminal law and needs to be recovered, the principal can be offset. On the premise that the borrower does not need to pay the loan interest, whether based on the principle of fairness or in order to avoid the conflict between the criminal and the people, the guarantor of the slave debtor should not bear the repayment responsibility beyond the principal debtor.
In the past practice, most trial courts, including the Supreme Court, tend to take the first view, and even if the loan interest is too high, the guarantor should be assumed within the legal scope. In the context of years of cracking down on smoking ban cases, relevant departments have been committed to "popularizing the law" to participants, telling them that investment is risky and losses should be borne by themselves. With the reduction of the interest rate of private lending and the identification and prevention of professional lenders, the restrictions and requirements of the law on private lending are getting higher and higher, showing a trend of discouraging and not supporting to some extent. The latest retrial ruling of the Supreme Court and the retrial judgment of the Hebei Provincial High Court cited in this paper also confirm the different value orientation of the judicial organs from the past, and treat the loan interest in non-smoking cases with caution, carefully identify it, or even not identify it at all.
Whether protecting bona fide lenders or bona fide guarantors, the law is trying to find a balance between them.