(1) Determine the interest base of legal delayed performance.

Article 253 of the Civil Procedure Law stipulates that the obligation to pay money determined by legal documents shall be fulfilled, and the amount of the debt shall be specifically determined by the designation of legal documents. The amount of money payment obligation is the interest basis for delayed performance. So what are the interest bases for overdue performance? In practice, due to different cases, the performance is also different. Take the judgment and ruling with the obligation to pay money as an example. In most cases, there are the following four contents: payment of principal, liquidated damages, payment of interest, legal fees (appraisal fees) and so on. Generally speaking, no one objects to the inclusion of the principal in the interest base of delayed performance. What are the following questions about liquidated damages, interest payment and legal fees? Whether the interest base of delayed performance should be included should be analyzed in detail. [ 1]

1. liquidated damages

Liquidated damages refer to the money that one party should pay to the other party for breach of contract according to the agreement of the parties or the direct provisions of the law. The subject matter of liquidated damages is money, which is produced according to the agreement between the two parties in the relationship of money payment. In the case of one party's breach of contract, the court will support the obligee's claim and make the liquidated damages as the debtor's payment obligation in the judgment or ruling. The basic view that liquidated damages are not included in the calculation of interest for delayed performance is that liquidated damages are punitive. [2] If they are included in the basic points of interest calculation for delayed performance, they are repeated sanctions. This understanding actually confuses the concepts and liability forms of liquidated damages and delayed performance interest, and confuses the boundaries between public power and private power. The determination of liquidated damages is based on the agreement of private rights of both parties and the expression of their true meaning. After a party violates the agreement, it is determined by the recognition of public power in the lawsuit. Delayed performance of interest is a mandatory provision in the execution link of the procedural law, and it is a kind of punishment for debtors who fail to perform their legal obligations by public power. There are different links in the legal relationship between the two. The former is dominated by private rights, and both parties freely agree; The latter is dominated by public power after entering enforcement, and there is no duplication between the two.

2. Interest and legal fees paid by the plaintiff.

In my opinion, ordering the person subjected to execution to pay the interest for the delay in performance is a kind of enforcement measure [3], a way for civil enforcement agencies to hold the person subjected to execution accountable for the delay in performance, and a public law sanction for the person subjected to execution not to perform or not to perform the obligations of legal documents in time. This kind of sanction is aimed at the delayed performance of the person subjected to execution, and protects the legitimate rights and interests of the applicant and the order and dignity of the national law. Judging from the calculation period of delayed performance interest, it is calculated from the day after the expiration of the performance period determined by the effective legal document. At this time, the plaintiff's interest, legal fees, appraisal fees and other expenses have been decided by the court to be paid by the defendant to the plaintiff, which actually formed a new debt of the defendant to the plaintiff, which should have the same legal status as the original debt. Obviously, from the original legislative intent, based on the punitive nature of the interest on delay in performance, all debts determined should be included in the scope of the base of delay in performance from the date of calculating the interest on delay in performance, that is, not only the principal and the interest determined by the judgment, but also the legal fees and appraisal fees paid by the plaintiff should be included. The view that the interest before delay in performance should not be included in the delayed debt actually ignores the punitive characteristics of the countries where the interest for delay in performance is applicable, but only understands it as the result of general private lending. Of course, the legal fees and appraisal fees directly borne by the person subjected to execution are not the debts of the debtor to the creditor, and the applicant for execution has not suffered any loss of interests (mainly fruits). I don't think they should be included in the cardinality, but they can be calculated separately.

(ii) Determining the legal period for delaying the performance of interest.

With regard to the starting time of delayed performance interest, Article 293 of the Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Opinions on Civil Procedure) clearly stipulates: "If the person subjected to execution delays performance, the interest or payment for delayed performance shall be calculated from the day after the expiration of the performance period specified in the judgment, ruling and other legal documents." The main problem in practice is how to determine the starting date of a case that has passed the second trial or retrial. The mainstream view in practice is that the effective judgment of the second instance legally determines the rights and obligations between the parties, whether it is to change the first instance or to uphold the original judgment. The effective judgment of the case is the judgment of the second instance, and the starting time is the day after the expiration of the performance period specified in the judgment of the second instance. If the case enters the retrial procedure after the second trial, it should be handled in two cases. If the original judgment is upheld by retrial, the retrial has no actual impact on the validity of the original judgment, so the starting point of delayed performance is still the day after the expiration of the performance period specified in the original judgment; For cases retried or remanded for retrial, the day after the expiration of the performance period determined in the new judgment document shall be the starting date [4]. The author believes that the above views can be recognized.

There is generally no dispute that the deadline for executing the deferred interest period is the date of actual performance. The problem in practice is how to determine the actual performance date.

The author thinks that the case should be discussed according to the actual payment date (the date of payment by the executed person or the third party). The author takes the actual date of payment as the standard, because in the process of execution, all kinds of compulsory measures taken by the court and the procedures such as auction and sale caused by them are caused by the debtor himself, and he should be responsible for the consequences of his actions, so the period ends on the date of payment. [5]

I think it can be divided into the following situations:

1. If the person subjected to execution directly pays the money to close the case, the deadline shall be the date when the person subjected to execution pays the money.

2. If the court deducts in full, the deadline shall be the date when the deposit of the person subjected to execution is deducted in full; If the deduction is not full, the date of the last deduction (including interest) shall be the deadline.

3. If the auction or sale is over, the deadline is the delivery date of the proceeds from the auction or sale, and if the proceeds are transferred to the applicant through the court account, the deadline is the date when the proceeds reach the court account.

4. If the applicant agrees to settle the debt in kind after the auction is suspended, the deadline shall be the date of settlement between the two parties (the date of delivery of the ruling on debt in kind).

In addition, it must be mentioned that in the case of auction, sale, debt repayment in kind, etc. , prone to unreasonable extension of the execution period, which is unfavorable to the person subjected to execution. For example, based on the time arrangement of the execution judge's handling the case, the evaluation of the delay of the auction institution, the applicant's deliberate delay in expressing his position and other factors, objectively, the later the auction is held or the debt is paid in kind, the more favorable it is for the applicant (the actual payment time of the case is extended). In this regard, the author suggests: first, formulate a detailed and feasible standard system for the above links to standardize the handling process of the whole execution case; Second, if the person subjected to execution has evidence to prove that there are any of the following circumstances, the court may reduce or exempt him from the obligation to pay the delayed interest. [6]

1. The applicant intentionally delays or refuses to pay;

2. The person subjected to execution actively fulfills the obligation of payment within the scope of his ability and is recognized by the applicant;

3. In criminal incidental civil disputes, the person subjected to execution has no ability to perform;

4. Other circumstances in which punishment is mitigated or exempted.

(3) Determination of the calculation standard of legal delay in performance interest

There have been different views on this issue for a long time. In order to solve the disputes in practice, the Official Reply of the Supreme People's Court on How to Calculate Debt Interest during Delayed Performance (hereinafter referred to as the "Reply") issued on May 8, 2009 changed the original law from "the highest interest rate of bank loans for the same period" to "the benchmark interest rate of loans for the same period stipulated by the People's Bank of China". This change has solved two problems, namely: the bank is determined as "China People's Bank"; The highest interest rate is determined as the "benchmark interest rate". However, the issue of "interest rate for the same period" was not elaborated. The author believes that there are two contents in the same period:

One is "the same semester", which can be understood as "the same grade". The interest rate of bank loans varies with the length of years. The interest rate of loans with a term of six months, one year to three years or longer is gradually increasing. The longer the time, the higher the interest rate. When determining the interest rate, we should first determine the length of the delayed performance period, that is, from the day after the expiration of the prescribed performance period to the actual performance date of the executed person, the interest rate grade of the bank loan for the same period should be applied. The corresponding relationship of the term is: if the performance is delayed for less than 6 months, it will be calculated according to the 6-month loan interest rate; If it is less than 1 year for more than 6 months, it shall be calculated according to the loan interest rate of 1 year, and so on. [7]

The second is "the same date". That is to say, the benchmark interest rate of similar loans of China People's Bank for the same period on the day after the expiration of the specified period shall prevail. [8] The author believes that "the same period" refers to the "same period interest rate" that implements the benchmark loan interest rate stipulated by the People's Bank of China during the period after the expiration of the performance period stipulated by legal documents. The time of the interest rate for the same period changes with the adjustment of the benchmark interest rate for loans for the same period stipulated by the People's Bank of China, and is calculated by stages. This understanding is entirely due to the adaptation of the interest adjustment calculation method used by the People's Bank of China and the observance of public power. The so-called "same period" is the same period when the People's Bank of China adjusted the interest rate, which changed according to the interest rate adjustment of the People's Bank of China in the same period. This is a floating period and cannot be explained in other ways. However, before the introduction of legal or judicial interpretation, this interest calculation method of commercial banks may not be applicable to enforcement cases. For example, commercial banks calculate interest irregularly on a six-month basis, which is not supported by the court in personal debt judgment. According to the understanding of the legislative law, the regulations issued by the People's Bank of China are only the reference objects when the court makes a judgment or executes it. If the rule is to be incorporated into the practice of civil execution without other objections, it needs to be further clarified through legal or judicial interpretation.

(four), the specific calculation method of legal delay in performance interest.

1. Calculation of one-time payment

Just give a more complicated example: one-time settlement, but the time interval spans two or more central bank loan interest rate adjustment periods:

We assume that the judgment was issued on April, 2065438 1 day, the amount of performance was 50,000 yuan, and the performance period was 10 working days. After the judgment came into effect, it applied for compulsory execution in May 1 year, and paid 50,000 yuan on June/February 19. The half-year annual interest rate adjusted by the central bank on March 20 12 18 was 5.67%, and the half-year annual interest rate adjusted by the central bank on May 20 12 19 was 5.85%, from April 10 to/kloc-0. The execution amount should be 5 1 1 0 1.75 yuan.

Z = 50 000+50 000× 2× (5.67/360/100× 39+5.85/360/100× 30) = 565 438+01065 438+.

2. Calculation of multiple payments

On the issue of multiple repayment, the Supreme People's Court's Reply on How to Calculate Debt Interest during Delayed Performance (Fa Shi [2009] No.6) clarifies the principle of repayment, that is, when the execution amount is insufficient to pay off all debts and interest, the two parts shall be paid off at the same time in proportion. According to the approved specific calculation method:

Total repayment amount = repaid principal+repaid principal × benchmark interest rate of China People's Bank for the same period× 2× delayed performance period. Therefore, it can be concluded that:

Repayment of principal = total repayment amount /( 1+ benchmark loan interest rate of China People's Bank for the same period× 2× delayed performance).

For multiple repayments, when partial repayments are proportional, it is necessary to calculate their respective principal and interest amounts. Calculate the principal amount of the last repayment, and then deduce the amount of the last repayment. The interest of partial repayment by stages is the interest to be paid by the partial repayment itself, and there is no need to add or subtract after the overall calculation.

We assume that the judgment was issued on June 5438+10/October 65438 +0, 2007, and the performance amount was 265438 yuan+0,000 yuan, and the performance period was 10 working days. After the judgment came into effect, it was applied for enforcement on June 65438+1 October1,and in 2007 it was 165438+. In June 2008 1 65438+1 October150000 yuan was paid, and in 20091October 65438+1October1how much should be paid in one lump sum?

June 65438 +065438+10/October 65438 +0, 2007 The first payment of 50,000 yuan is within 6 months. On September 6th and May 6th, 2007, the central bank adjusted the interest rate to 6.48%. Partial repayment amount = principal+principal × benchmark loan interest rate for the same period ×2× delayed performance.

50 000 = X 1+X 1×30 days× 2× 6.48/100/360.

X1= 50000/(1+0.0108) = 49465.77 yuan.

On June 65438 +065438+10/October 65438 +0, 2008, the second interest payment of 50,000 yuan was 1 year, spanning five interest rate adjustment periods as follows:

50000 = X2+x2×（70×2×7.47%+265×2×7.56%+23×2×7.29%+2 1×2×7.02%+ 1 1×2×6。 75 %）/365

X2 = 50000/(1+0.170949) = 42700.4 yuan.

The third time was paid off in one lump sum on June 65438+1 October 1 in 2009, with a term of1to three years' interest. After seven interest rate adjustment periods, the situation is as follows:

X3 = 1 17833.83+ 1 17833.83（70×2×7.47%+265×2×7.56%+23×2×7。 29 %+2 1）

That is to say, if 10, 1, in 2009, you must pay 157, 104.37 yuan at one time to settle the account, and the implementation is completed.

The second is the calculation of the interest for delayed performance when the legal interest for delayed performance and the agreed interest for delayed performance coexist.

The "agreed interest for delayed performance" here refers to the situation that the parties have agreed on the interest and clearly recognized it in the effective legal documents. The most typical one is that the judgment states something like: "Until the date of payment of the principal and interest, the interest will be paid together with the principal, calculated at four times the loan interest rate of the People's Bank of China for the same period?" Wait a minute. In this case, the determination of the base, the determination of the period and the specific calculation method of interest for delayed performance are no different from the simple legal interest for delayed performance, so I won't go into details here? . The difference between the two is mainly reflected in the different calculation standards of interest during the period of delay in performance.

According to the relationship between the statutory interest on delayed performance and the agreed interest on delayed performance, the viewpoints in practice can be divided into the following six categories:

The first opinion: they exist in different stages of time, and the agreed deadline of delayed performance interest is seamlessly connected with the legal starting date of delayed performance interest, which cannot coexist and belongs to a linear relationship. The main reasons are as follows: the concept of timeliness should follow the natural attribute of time itself, and time is a complete chain that will not be interrupted. Judicial interpretation clearly stipulates that the execution time is the day after the expiration of the performance period determined by legal documents. Then the day before this "next day" is the expiration date of the performance period stipulated in the legal document, and the agreed interest is calculated to the expiration date of the performance period stipulated in the legal document. [9] This calculation method is in line with the approval of the Supreme Court, but it completely ignores the effectiveness of the agreement between the parties in civil cases, and it is suspected of expanding public power, especially when the interest rate of loans from two banks is lower than the agreed interest rate, which will harm the interests of creditors.

The second opinion [10]: adopt the principle of "if it is high, it will be low". When the interest rate agreed by both parties is higher than twice the bank loan interest rate, the interest rate agreed by the parties will apply; If it is lower than twice the bank loan interest rate, twice the bank loan interest rate will apply. The disadvantage of this opinion is that it may exclude the application of Article 253 of the Civil Procedure Law, and there is a trend of judge authority.

The third opinion: corresponding to the second opinion, it advocates adopting litigiousism on this issue, that is, making a decision according to the parties' application for execution. If the parties apply for the implementation of the bank's double interest rate, the calculation standard is the bank's double interest rate; If the parties apply for the implementation of the agreed interest rate, the calculation standard is the agreed interest rate; If the agreement between the parties is not clear, it shall be calculated according to the standard prescribed by law (bank double interest rate). The author thinks that this view fully considers the disposition right of the parties in civil cases and embodies the principle of voluntariness. However, it depends entirely on the application of the parties, which inevitably ignores the legal and punitive nature of the interest system for delayed performance.

Based on the second and third opinions, and considering the principle of voluntary fairness, the author thinks that if the principle of combining party application with authoritarianism is not adopted: if the interest rate agreed by the parties is twice higher than the bank interest rate, it will be calculated according to the interest rate determined by the implementation benchmark; If the interest rate agreed by the parties is lower than one time of the bank interest rate, the applicant may choose to calculate at one time of the bank interest rate or at the agreed interest rate. On the one hand, this way maintains the right of disposition of the parties, on the other hand, it also reflects the punitive nature of legal delay in performance of interest, which the author thinks is more reasonable. However, the above two opinions have the following problems: Article 253 of the Civil Procedure Law clearly stipulates that if the person subjected to execution fails to perform his obligations within the period determined by the effective legal documents, that is, "it is impossible" or "the obligee has the right to demand" to double the debt interest during the delayed performance period. Moreover, the rights and obligations automatically arise from the obligor's non-performance to the next day after the expiration of the specified period, and should not depend on whether the creditor makes a clear request when applying for execution thereafter. [1 1] Based on the above reasons, the practical circles tend to calculate the two kinds of delayed performance interest at the same time, but according to the different calculation standards, there are the following different opinions:

The fourth opinion: the agreed interest rate confirmed by the judgment is the true meaning of both parties. If the person subjected to execution delays performance, the interest for delayed performance shall be calculated at twice the interest rate.

Fifth opinion: two kinds of interest can be calculated at the same time, but the interest rate agreed by the parties shall not be higher than four times the similar interest rate of the bank, and the interest for delayed performance shall be calculated at twice the bank interest rate.

The author believes that the fourth and fifth opinions mentioned above are inappropriate. The disadvantage of the two opinions is that both of them unduly increase the burden on the person subjected to execution (the fourth opinion can be calculated at 8 times the bank interest rate at most, that is, the annual interest rate is about 45%-50%; The fifth opinion can be calculated at most 6 times of the bank interest rate, that is, the annual interest rate is about 35%-40%), which violates the principle of fairness. And the fourth opinion is obviously in conflict with the Supreme People's Court's "Reply" that "the debt interest during the period of delay in performance shall be executed according to the benchmark loan interest rate for the same period". Considering that the "Reply" in 2009 changed the "highest interest rate of bank loans" to "benchmark interest rate of people's bank loans", although the legislative intention has not changed, why can't it be calculated according to the debt interest rate and the highest interest rate of bank loans determined by the effective judgment and only according to the benchmark interest rate? The judicial interpretation has not publicly explained the reasons. According to the author's speculation, there are probably two reasons: first, the interest on debts during the period of delay in performance should be legal, with clear and unified standards, which cannot be agreed by the parties or vary from case to case; The second is to balance the interests of all parties, which should not only conform to the original intention of legislation, but also prevent the amount from being too high. [ 12]?

In this case, opinions on amending Article 253 of the Civil Procedure Law are gradually emerging-the sixth opinion is that the interest agreed by both parties should be respected, Article 253 of the Civil Procedure Law should be amended, and the benchmark interest rate of bank loans should be changed from a dual-track system to a single-track system. That is to say, the debt interest during the delay in performance includes both the interest calculated according to the interest rate agreed by both parties and the interest calculated according to the benchmark interest rate of bank loans during the same period. This not only shows respect for the wishes of both parties, but also insists on the legitimacy and punishment of the interest system for late performance, taking into account fairness. The author believes that the above views can be recognized.

First of all, the above amendments adhere to the principle of contractual autonomy. The interest clause agreed in the contract should be used until the debt is fulfilled, not the judgment takes effect. If the parties agree not to pay interest, during the period of delayed performance, only the interest of delayed performance will be paid according to the benchmark interest rate of similar loans for the same period stipulated by the People's Bank of China, and other debts will not be paid. If it is a private personal loan, the parties agree to pay interest at 4 times of the benchmark interest rate, then in addition to paying the house price plus 0 times of penalty interest (statutory penalty interest), they also need to pay debt interest at 4 times of the benchmark interest rate agreed in the contract, totaling 5 times (annual interest rate is 25%-30%).

Secondly, the above amendment insists on the punitive nature of the interest for delay in performance. Punitive nature is the most basic attribute of the interest system for delaying performance. Without this attribute, its existence loses its meaning. There is no provision in China's legal and judicial interpretation to increase the debtor's default cost, and the system of fine and delayed performance of interest are the only two economic sanctions. But in the current practice, it is either actually abandoned or used beyond recognition. [13] Because many debts have been in arrears for a long time, the agreed interest rate at that time was relatively high, and because the current personal loan interest rate is allowed to reach four times the benchmark interest rate of the People's Bank of China in the same period, it sometimes happens that the interest rate determined by the legal documents that take effect today exceeds twice the benchmark interest rate of the bank. At this time, we must adhere to the legislative intention of punishing delay in performance with interest system, and ensure that the interest borne by the debtor during the delay in performance is higher than the interest at any time agreed by both parties or determined by effective legal documents.

Third, the above amendment insists on the legality of delaying the performance of interest. Interest on delayed performance belongs to the penalty measures specially prescribed by law for debtors who delay performance, and the standards should be clear and unified. It is noteworthy that Article 46 of the draft enforcement law drafted by the Executive Board of the Supreme People's Court (the sixth review draft of the draft) suggests: "If the debtor fails to perform the obligation of monetary payment within the period determined by the effective legal document, the amount of delayed performance shall be determined by the enforcement judge within the range of two ten thousandths to five ten thousandths of the debt amount until the expiration of the performance period determined by the effective legal document, and the specific standards shall be stipulated by the Supreme People's Court. The parties shall not object to the implementation of the interest rate standard determined by the court within the statutory scope. " The author believes that "benchmark interest rate for the same period" includes the possibility of changing with the economic situation, while "several ten thousandths of daily interest rate" does not have this advantage.

The third small problem

In the above, the author expounds his own views on the calculation of interest on delayed performance, and there is a question I want to discuss with you: how to apply the repayment principle when calculating interest on delayed performance according to the agreed interest rate?

As mentioned above, the Supreme People's Court made clear the principle of settlement in the reply, that is, when the execution amount is not enough to pay off all debts and interest, the two parts will be paid off at the same time in proportion. According to the spirit of reply, it can be concluded that the principle of consolidation should also be applied when calculating the interest on delayed performance at the agreed interest rate. However, the specific calculation method in the reply is:

Total repayment amount = repaid principal+repaid principal × benchmark interest rate of China People's Bank for the same period× 2× delayed performance period. In other words, the reply is based on the calculation of interest for legal delay in performance. When calculating the interest for delayed performance according to the agreed interest rate, whether to calculate the proportion of principal and interest in strict accordance with the approval or adjust the calculation method of interest has become a problem that should be considered. The author thinks that the calculation method should be revised as follows: the total repayment amount = repaid principal part+repaid principal part × (agreed interest rate+benchmark interest rate of China People's Bank for the same period× 2 )× delayed performance is appropriate.