Cases are illustrated by specific cases:

Plaintiff Li and defendant Xue are friends. In June 2009 165438+ 10/0, the defendant Xue borrowed RMB 10000 from the plaintiff Li and issued a receipt. The agreed loan period is 2 months and the monthly interest rate is 1.5%. After the loan expired, the defendant Xue failed to repay the principal and interest on schedule, and the plaintiff failed to collect it many times. On April 20 1 1 year, the court of first instance told the defendant to return the loan principal 10000 yuan and pay the overdue interest of 15 months at the monthly interest rate of 2.25%, that is, 225 yuan, totaling10.

divergence

The focus of the dispute in this case is how to calculate overdue interest. There are mainly three different opinions as follows:

First opinion: the overdue interest should be calculated at the monthly interest rate 1.5% as agreed in the contract, and the overdue interest of 1.5 months should be 2250 yuan, so the defendant is judged to immediately return the plaintiff's loan principal 10000 yuan and interest of 2550 yuan.

Second opinion: According to the judicial interpretation of the Supreme Court, the overdue payment interest of the parties to the contract can be calculated by referring to the relevant regulations of the People's Bank of China and increasing the agreed interest rate by 30%-50%. The plaintiff's request for the defendant to pay 2.25% overdue interest every month is in line with the law and should be supported. Therefore, the defendant should be ordered to immediately return the loan principal 10000 yuan and interest of 3675 yuan.

Third opinion: the overdue interest can be increased by 30%-50% on the basis of the interest rate 1.5% agreed by both parties in the contract with reference to the relevant regulations of the People's Bank of China, but the plaintiff requires the defendant to pay 2.25% of the overdue interest on a monthly basis, which is more than four times the interest of similar bank loans in the same period. In 2009, the People's Bank of China stipulated that the benchmark interest rate for financial institutions' loans within six months was 4.86%, that is, the monthly interest rate was 0.405%. Four times should be 1.62%, and the interest beyond this limit is not supported, that is, the defendant should pay the overdue interest at the monthly interest rate of 1.62%, so the defendant is judged to return the plaintiff's loan principal 10000 yuan and interest of 2730 yuan.

Comments and judgments

The second opinion is correct. In this case, the plaintiff and the defendant have a legal relationship of private lending, and both parties have agreed on the loan amount, loan term and interest. In 2009, the annual interest rate of financial loans within six months stipulated by the People's Bank of China was 4.86%, and the monthly interest rate 1.5% agreed by the original and the defendant did not exceed four times this interest rate, so the interest agreed in this loan relationship was in compliance with the law.

The biggest controversy in this case lies in the calculation of overdue interest. According to the official reply of the Supreme People's Court Law Interpretation [1999] No.8, "If the parties to the contract have not agreed on the standard of liquidated damages for overdue payment, the people's court may calculate the liquidated damages for overdue payment with reference to the standard of interest charged by financial institutions on overdue loans stipulated by the People's Bank of China." Article 3 of the Notice of China People's Bank (Yinfa) [2003] No.251:"The default interest rate of overdue loans is changed from the current daily interest rate of 2. 1% to the loan interest rate agreed in the loan contract." According to the above provisions, the original and the defendant agreed that the monthly interest rate of the loan in this case was 1.5%, and the plaintiff could raise the loan interest rate by 50% according to this agreement, that is, calculate the interest at the monthly interest rate of 2.25%.

There are three kinds of fallacies. They believe that according to Article 6 of the Supreme People's Court's Opinions on People's Courts Handling Lending Disputes, "the interest rate of private lending can be appropriately higher than the bank's interest rate, and the local people's court can grasp it according to the actual situation in the region, but the maximum shall not exceed four times the interest rate of similar loans due at the same period of the bank. If this limit is exceeded, the interests beyond the department will not be protected. " The monthly overdue interest rate of 2.25% in this case has exceeded 4 times the benchmark monthly interest rate stipulated by the People's Bank of China, that is, 1.62%, and the part exceeding 4 times the interest rate will not be supported. It needs to be clear here that the interest on overdue payment is not pure interest, and the defendant's overdue payment is a breach of contract, and the defendant should bear the corresponding liability for breach of contract by paying overdue interest. It is not difficult to see from the wording in the official reply of the Supreme People's Court's "Fa Shi [1999] No.8" that overdue interest is a penalty for overdue payment, not just interest, but more punitive, so it is no longer restricted by the benchmark loan interest rate stipulated by the People's Bank of China, and the excess should also be supported.

To sum up, the overdue interest of private lending is overdue liquidated damages, which can be exempted from the limit of 4 times the loan interest rate stipulated by the People's Bank of China. In this case, the defendant should be ordered to immediately return the plaintiff's loan principal 10000 yuan and interest of 3675 yuan.