The amount of liquidated damages in the loan contract shall be calculated in accordance with the provisions of the loan contract; If there is no agreement, no liquidated damages will be calculated, but the borrower shall compensate the lender for the loss or pay overdue interest. According to Article 114 of People's Republic of China (PRC) Contract Law: "The parties may agree that one party shall pay a certain amount of liquidated damages to the other party according to the breach of contract, or they may agree on the calculation method of the amount of damages for breach of contract." If there is an agreement in the contract, liquidated damages can be calculated. Without agreement and law, there will be no liquidated damages, which cannot be calculated. (1) If there is an agreement between the borrower and the lender on the overdue interest rate, such agreement shall prevail, but the annual interest rate shall not exceed 24%. (2) If the overdue interest rate is not agreed or the agreement is unclear, it shall be handled according to different situations: ① If the overdue interest rate is not agreed, the lender may require the borrower to pay the interest at the annual interest rate of 6% from the date of overdue repayment. (2) If the interest rate during the loan period is agreed, but the overdue interest rate is not agreed, the lender may claim that the borrower shall pay the interest during the capital occupation according to the interest rate during the loan period from the date of overdue repayment. (3) 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 total amount exceeds 24% of the annual interest rate. Article 28 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases stipulates that both borrowers and borrowers shall, after settling the principal and interest of the previous loan, include the interest in the principal of the later loan and reissue the creditor's rights certificate. If the previous interest rate does not exceed the annual interest rate of 24%, the amount specified in the reissued creditor's rights 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 future loan principal, the people should support it. According to the calculation in the preceding paragraph, the sum of the principal and interest payable by the borrower after the expiration of the loan term cannot 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 asks the borrower to pay more, the people will not support it.

How to calculate the penalty for overdue loans

According to the Reply of the Supreme People on the Calculation Standard of Default Interest on Late Payment (Fa Shi [1999] No.8) and its revised reply (Fa Shi [2000] No.34), and the Notice of the People's Bank of China on Reducing the Deposit and Loan Interest Rate (1June 1999 10). Therefore, if the cases tried at this stage involve liquidated damages for late payment, the calculation standard is the daily interest rate of 2. 1 ‰. 1.2004 June 1999 to June 10 to 10/0/day, the calculation standard of the liquidated damages for overdue payment is 2. 1 ‰ of the daily interest rate. 2. The interest rate of overdue loans after June 65438+1 October12004 has been revised. On June 5438+February 10, 2003, the People's Bank of China issued the Notice of the People's Bank of China on Issues Related to RMB Loan Interest Rate (Yinfa [2003] No.251), in which Article 3 revised the overdue loan interest rate (default interest rate) from the current daily interest rate of 2. 1 ‰. This notice shall come into force on June 65438+ 10/day, 2004. Third, the standard of liquidated damages for late payment after June 5438+1 October12004 is still uncertain, which makes it difficult for judges to hear this case. (1) 2. The standard of110000 has lost its legal effect in name. Because the standard of overdue loans of 2. 1% has been explicitly cancelled and replaced by other standards, there is no basis for judging a case with the standard of 2. 1%. (2) The current interest rate of overdue loans is not operational. Yinfa [2003] No.251changed the way of directly determining the overdue loan interest rate (default interest rate) in the past, but quoted "the loan interest rate level agreed in the loan contract". In this way, in the case that the non-loan parties have not agreed on the standard of liquidated damages for overdue payment, it is impossible to finally determine the calculation standard of liquidated damages for overdue payment according to the documents of Fa Shi [1999] No.8, Fa Shi [2000] No.34 and Yin Fa [2003] No.251. (3) Since June 65438+1 October1in 2004, no new judicial interpretation has been issued to solve this problem. Regrettably, the Supreme People's Government failed to keep up with the policy changes of the People's Bank of China regarding the calculation standard of liquidated damages for overdue payment. Since June 65438+1 October12004, there has been no reply. Four, in today's judicial practice, several possible standards for calculating liquidated damages for overdue payment. (1) The calculation standard is still 2. 1 ‰ per day. I don't know if netizens have noticed that the judicial interpretations of Fa Shi [1999] No.8 and Fa Shi [2000] No.34 use the expression "may" instead of "must" when stipulating the calculation standard of liquidated damages for overdue payment. Therefore, the judge handling the case can adjust the standard of liquidated damages for overdue payment according to the provisions of judicial interpretation, or choose not to adjust it. Because the current standards are not operable, business as usual has become a reasonable choice for many judges. (2) The current interest rate shall apply to overdue loans. In a non-loan contract, if the parties have not agreed on the standard of liquidated damages for overdue payment, they can add 30% ~ 50% to the benchmark loan interest rate announced by the People's Bank of China as the calculation standard of liquidated damages for overdue payment. Specifically, on the delivery date, if the loan defaults for one to two years, an additional 30% to 50% will be charged according to the benchmark interest rate of the one-year loan; If the loan is in default for two to three years, an additional 30% ~ 50% will be charged according to the benchmark interest rate of the two-year loan; If the default exceeds the longest loan term (currently 5 years), the benchmark interest rate of the longest loan term (i.e. 5-year loan) will be charged by 30% ~ 50%. (3) The penalty for late payment is not supported. A few judges may refuse to protect the rights and interests of creditors on the grounds that the original standard is abolished and the new standard is not applicable. In judicial practice, the parties have to abide by it. Relevant laws and regulations: Reply of the Supreme People on the Calculation Standard of Late Payment Fees [1999] No.8 "Reply of the Supreme People on the Calculation Standard of Late Payment Fees" was adopted at the19991042nd meeting of the Supreme People's Judicial Committee on129, and is hereby promulgated, since 65438.

What is the overdue interest stipulated by the state?

The overdue interest stipulated by the state cannot exceed 24% every year.

The lender and the borrower agreed on overdue interest rate and liquidated damages or other expenses. Lenders can choose to claim overdue interest, liquidated damages or other expenses, or both, but the people will not support the part with the total annual interest rate exceeding 24%.

Overdue interest refers to the penalty interest caused by loans overdue, specifically the overdue penalty interest of the borrower who fails to repay the loan according to the contract. Overdue interest is closely related to overdue loans and the credit problems of users.

Article 207 of the Contract Law stipulates: "If the borrower fails to repay the loan within the agreed time limit, it shall pay overdue interest in accordance with the agreement or relevant state regulations".

About penalty interest. The default interest rate of overdue loans (loans that the borrower fails to repay on the date agreed in the contract) is changed from the current daily interest rate of 2. 1% to 30%-50% higher than the loan interest rate agreed in the loan contract; If the borrower fails to use the loan as agreed in the contract, the penalty interest rate will be changed from the current daily interest rate of five ten thousandths to 50%- 100% of the loan interest rate agreed in the loan contract.

For loans that are overdue or not used according to the purpose agreed in this contract, interest will be charged at the default interest rate from the date when they are used in loans overdue or not according to the purpose agreed in this contract until the loan principal and interest are fully paid off. For the interest that cannot be paid on time, compound interest shall be calculated at the penalty interest rate.

If the parties have an agreement in the loan contract on the loan term, interest during the loan period and overdue interest, they should respect the autonomy of the parties and follow their agreement. As long as the commercial loans overdue interest does not exceed the interest rate standard stipulated by the People's Bank of China, and the private loan meets the conditions stipulated by the Supreme People's Government and is not higher than 4 times the bank loan interest rate, it will be calculated at the agreed interest rate.

In the loan contract, the two parties only agreed on the interest during the loan period, but not on the interest on overdue loans. The lender of a commercial loan may require the borrower to pay the overdue interest at the interest rate agreed in the contract during the loan period, or may require the borrower to pay the overdue interest in accordance with the relevant provisions of the state. The choice lies with the lender.