Lending relationship and use

Article 90 of the General Principles of the Civil Law stipulates: "Legal loan relationship is protected by law". Fairness, voluntariness and legality are the basic principles of civil law and contract law. Any civil activities must abide by laws and administrative regulations, respect social morality, and must not disturb social and economic order or harm social public interests. For the loan requirements put forward by others, the lender should first consider the credit degree and repayment ability of the other party, and at the same time ask the other party about the purpose of borrowing and decide whether to borrow properly. If the lender still borrows money knowing that the borrower is engaged in gambling, smuggling, fraud, drug trafficking, gun trafficking and other illegal activities, it is illegal to borrow money, and its lending relationship is not protected by law. Lenders are not only deprived of their creditor's rights, but also subject to civil and administrative sanctions according to relevant laws, and even be investigated for criminal responsibility. In addition, private lending between natural persons must be voluntary. According to the law, a loan relationship formed by one party by fraud, coercion or taking advantage of others' danger against its true meaning shall be deemed invalid.

On August 6th, 20 15, the Supreme Law promulgated the Provisions of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Private Lending Cases, and this judicial interpretation will come into effect on September 6th, 20 1 year. [

Conclude an agreement

In real life, private lending mostly happens between relatives and friends. Because these people are usually closely related, out of trust or affection, private lending relationships are often concluded in the form of oral agreements without any written evidence. In this case, once one party denies it, the other party will fall into an "empty talk" situation because it can't produce evidence. Even if a lawsuit is filed, the lender will lose because he can't produce evidence. According to Article 4 of "Several Opinions of the Supreme People's Court on People's Courts in Hearing Lending Cases", when people's courts examine lending cases, they shall require the plaintiff to provide written evidence; If there is no written evidence, the necessary factual evidence shall be provided. A lawsuit that does not meet the above conditions shall be ruled inadmissible. Therefore, it is necessary for both borrowers and lenders to sign a written agreement. When the lender and the borrower conclude a written agreement, the agreement shall include: the names of the lender and the borrower (subject to the household registration book or resident identity card); The purpose of the loan; Loan amount (words and figures are consistent); Currency (RMB or foreign currency); Borrowing time and repayment time (specify a certain year, a certain month and a certain day); Repayment method and liability for breach of contract, etc. If it is an interest-bearing loan, the interest rate must be clearly written in the agreement. In order to protect the legitimate rights and interests of lenders, lenders must pay attention to the proper preservation of written agreements and other evidence, so that disputes can be documented in the future.

Early repayment

In the loan contract, knowing that the borrower does not repay is a breach of contract. In fact, the borrower's prepayment also constitutes a breach of contract. Article 208th of the Contract Law stipulates: "If the borrower repays the loan in advance, unless otherwise agreed by the parties, the interest shall be calculated according to the actual loan period." This provision provides a legal basis for borrowers to repay in advance. However, the prepayment of the borrower and the calculation of interest need to be made clear by both parties when signing the agreement. In addition, Article 2 165438 1 of the Contract Law stipulates: "If the loan contract between natural persons has no agreement or the agreement is unclear, it shall be regarded as not paying interest." This provision is naturally unfavorable to lenders, and it is also easy to cause contradictions among lenders. Therefore, private lending must be clearly written in the agreement whether to pay interest and what the interest rate is.