According to Article 74 of the General Rules for Loans, if an enterprise borrows a loan without authorization or in disguised form, the People's Bank of China will confiscate the interest that the lender has obtained or agreed to obtain, and impose a fine equivalent to the bank loan interest on the borrower. However, in the judicial practice in recent two years, the application of the above judicial interpretation has undergone major changes. In many cases, the method of dealing with and punishing the agreed interest on illegal loans is no longer applicable, and many judgments are invalid in practice (some even fail to make a positive evaluation of the effectiveness), but there are also many judgments that order the return of the principal, the payment of interest calculated according to the bank's loan interest rate or deposit interest rate for the same period, and the interest obtained or agreed by investors is no longer charged, and the other party is no longer fined the same as the bank's loan interest for the same period.
2. Although the contract is invalid, it is not that the law does not protect it and has no effect, but that it has no effect expected by the parties to the contract. In the lending behavior between enterprises, the guarantee is invalid because the main loan contract is invalid, which is very risky for lenders. Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) stipulates: "If the main contract is invalid and the guarantee contract is invalid, and the guarantor is not at fault, the guarantor will not bear civil liability; If the guarantor is at fault, the part that the guarantor bears civil liability shall not exceed one third of the part that the debtor cannot pay off. "
3. The handling of such contracts in trial practice is like this.
(1) loan principal treatment.
As the subject matter of an invalid loan contract, the loan principal shall be returned to the lender in full. The Contract Law has detailed provisions on the handling of invalid contracts. If there is any fault in returning the original goods or funds, the parties shall be responsible for it themselves.
(2) Handling of loan interest and loss.
After the loan contract is confirmed to be invalid, the interest and profit agreed in the contract are generally not protected. Item (2) of Article 4 of the Supreme People's Court's "Answers to Several Issues Concerning the Trial of Disputes over Joint Venture Contracts" stipulates that the interest or profit agreed in the loan contract shall be confiscated and the borrower shall be fined for bank interest. Article 73 of the General Principles of Loans stipulates: "Administrative organs, enterprises and institutions, joint-stock cooperative economic organizations, supply and marketing cooperatives, rural cooperative foundations and other foundations issue loans without authorization; If an enterprise borrows without authorization or in disguised form, the People's Bank of China will impose a fine of 1 times and less than 5 times on the lender according to the illegal income, and the People's Bank of China will ban it. " It can be seen that the interest earned by the lender should be confiscated, and at the same time, the lender should be fined more than L times but less than 5 times the interest earned, and the borrower should be fined equivalent to the bank interest. For the borrower, it is equivalent to using a sum of money according to the agreed interest (charge).