1. 10 In June, Cui (then the general manager of Shenzhen Airport Company) signed a bank acceptance bill contract with Minsheng Bank with the official seal of Shenzhen Airport Company, and transferred a loan of 6,543.83 billion yuan to Northwest Asian Olympic Company, which was the chairman.
2. In March 2003, Cui signed a loan contract with Shanghai Pudong Development Bank with the official seal of Shenzhen Airport Company, and used the loan of 65.438+600 billion yuan to repay the principal and interest previously borrowed from Minsheng Bank.
3. In July 2003, Cui signed a loan contract with Industrial Bank with the official seal of Shenzhen Airport Company: the loan amount was 225 million yuan, and the purpose of the loan was working capital turnover. After that, Industrial Bank lent money according to the contract.
4. It was also found out that Cui borrowed money from the bank in the name of his own company to help raise funds and stamped his private official seal, which was regarded as the crime of defrauding loans.
5. Industrial Bank appealed to the court to ask Shenzhen Airport Company to repay the loan principal and interest.
Should Shenzhen Airport Company take full responsibility for repayment?
The loan involved in this case is that Cui and others forged documents and invented the purpose of the loan. In the name of Shenzhen Airport Company, they signed a loan contract with Industrial Bank Guangzhou Branch, and defrauded it after privately carving the official seal. All the funds defrauded were illegally occupied by the controlled company, and Zhang Yuming and Cui were put on file for investigation by the state judicial organs. The real purpose of Cui and others is to defraud bank credit assets. The signing of basic credit contracts and related loan contracts involved in this case is only the form and means of defrauding bank credit assets. The above acts are in line with the invalid contract stipulated in Item (3) of Article 52 of the Contract Law. According to the above provisions, the original judgment found that the basic credit contract and related loan contract involved in this case were legally used to cover up illegal purposes, and there was nothing wrong with the invalidity of the above contracts, which was upheld by our court.
During the signing and performance of the loan contract in this case, Industrial Bank failed to fulfill its duty of care, failed to conduct necessary appraisal and verification of the private seal of Shenzhen Airport Company, forged supporting documents and resolutions of the board of directors, and there were obvious omissions in the review, issuance and post-loan follow-up inspection of the loan. Shenzhen Airport Company, as a listed company, failed to disclose the loan involved in this case in the semi-annual report and annual report of the listed company for two years, and Industrial Bank failed to detect and take corresponding measures, so Industrial Bank also had certain faults in this case.
In our hospital's opinion, agency by estoppel means that the actor has no agency right, exceeds the agency right or continues to conclude a contract in the name of the principal after the agency right is terminated. If the bona fide counterpart objectively has sufficient reasons to believe that the actor has the agency right, the agency act is valid, and the principal should bear the civil liability between him and the counterpart according to the contract. But when the other party is at fault, there is no room for agency by estoppel, whether intentionally or negligently. Because the loan contracts in this case are invalid contracts that cover up illegal purposes in legal form, and Guangzhou Branch of Industrial Bank is at fault in the loan process involved in this case, the provisions of the contract law on agency by estoppel are not applicable, and Shenzhen Airport Company and Guangzhou Branch of Industrial Bank should bear corresponding civil liabilities according to their respective fault degrees.
(2008) Min Zhong Er ZiNo. 124
law of contract
Article 52 A contract is invalid under any of the following circumstances:
(1) One party enters into a contract by means of fraud or coercion, which harms the interests of the state;
(2) Malicious collusion that harms the interests of the state, the collective or a third party;
(3) Covering up illegal purposes in a legal form;
(4) damaging the public interest;
(5) Violating the mandatory provisions of laws and administrative regulations.
Guarantee law
The guarantee contract is a subsidiary contract of the main contract. The main contract is invalid, and the guarantee contract is invalid. If there are other provisions in the guarantee contract, such provisions shall prevail.
If the debtor, guarantor and creditor are at fault after the guaranty contract is confirmed to be invalid, they shall bear corresponding civil liabilities according to their faults.
When someone else uses the name of the borrower to handle the loan, does the creditor have the right to claim the repayment responsibility from the fraudulent borrower? Mainly depends on whether it constitutes agency by estoppel (or representative responsibility). The condition for the establishment of agency by estoppel (or representative's liability) is that the bona fide counterpart objectively has sufficient reasons to believe that the actor has the agency right, and in practice, the requirements for goodwill of the bona fide counterpart are relatively strict. In this case, it is considered that the creditor has obvious fault and should not be regarded as a bona fide counterpart without excluding reasonable doubt, so the agency by estoppel has no applicable space, and the author agrees. However, even if the agency by estoppel is not enough to invalidate the contract, it does not mean that the borrower of the contract has no responsibility at all; However, we should bear the corresponding civil liability according to the degree of fault of all parties.
This case reminds creditors that when establishing creditor's rights, they should do their duty of care to avoid unnecessary risks.