Entrusted loans involve three parties, namely the principal, the trustee (bank) and the borrower; There are three legal relationships, namely, the principal-agent relationship between the principal and the trustee (bank), the loan relationship between the principal and the borrower, and the legal relationship between the bank as the trustee and the borrower. The essence of the bank's behavior in entrusted loans is legal agency, and it should abide by the relevant provisions of the General Principles of Civil Law on agency.

Entrusted loan has always been considered that banks only act as trustees, only responsible for the relevant procedures of loans, and do not bear the risks of loans. The risk of the loan is borne by the customer, so the business is risk-free for the bank. However, in fact, if the bank fails to properly and fully perform the entrusted rights and obligations and causes losses to the customer, it should still bear corresponding responsibilities according to the degree of fault. Therefore, it is very important to clarify the role of banks in entrusted loan business.

(A) the rights of banks in entrusted loans

? 1. As the trustee, the bank has the right to charge the client and/or the borrower a handling fee, which is not linked to whether it receives the interest from the client.

2. Banks have the right to check the use of entrusted loans. The use shall comply with the provisions of the Commercial Bank Law and the General Rules for Loans, and meet the requirements of the national industrial policy. According to Article 20 of the General Rules for Loans, loans shall not be used for equity investment, unless otherwise stipulated by the state; Do not use loans to engage in securities and futures speculation; Except for borrowers who have obtained real estate business qualifications according to law, they may not use loans to operate real estate business; Borrowers who have obtained real estate business qualifications according to law shall not use loans to engage in real estate speculation; Do not seek illegal income by borrowing loans; Foreign currency loans shall not be used in violation of the provisions of the state on foreign exchange control.

3. Banks do not bear the risk of entrusted loans. According to Article 7 of the General Principles of Loans, the lender (trustee) only collects the handling fee and does not bear the loan risk.

? (2) obligations of banks in entrusted loans

1. Banks should ensure that they are qualified to accept entrusted loans from customers. According to the general loan rules, the lender must be a Chinese-funded financial institution legally established in China to engage in loan business. According to the 2000 Notice of the People's Bank of China on Issues Concerning the Entrusted Loan Business of Commercial Banks, banks should file with the People's Bank of China to start entrusted loan business. However, in the Announcement of the China Banking Regulatory Commission on Formulating, Amending, Abolishing and Not Applying Some Rules and Normative Documents (No.56 [2007] of the Banking Regulatory Commission), this provision has become invalid.

2. According to relevant laws and regulations on anti-money laundering, banks must examine whether the source of entrusted loans is legal, and prevent customers from engaging in illegal activities through entrusted loans or laundering money through entrusted loans.

3. Banks have the obligation to examine the legal qualifications of clients and borrowers. (1) For customers, customers should be government departments, enterprises and institutions at all levels. At present, the entrusted loan business of state-owned commercial banks, joint-stock banks, policy banks, city commercial banks, postal savings banks and credit cooperatives, foreign banks and their branches in China, insurance companies, securities companies, trust companies and investment management companies is not accepted (except that customers are approved by the competent authorities). (2) For borrowers, borrowers include enterprises and institutions, other economic organizations, individual industrial and commercial households and natural persons. At the same time, it should be noted that there are two restrictions on the qualifications of borrowers: ① functional departments within the unit cannot be borrowers; ② If the customer is a listed company, the borrower cannot be the controlling shareholder or other related party of the customer.

4. Banks are obliged to issue entrusted loans to borrowers in accordance with the entrusted loan contract.

5. Banks should fulfill their reporting obligations to customers. According to Articles 399 and 40 1 of the Contract Law, the trustee shall handle the entrusted affairs according to the instructions of the client and report the handling of the entrusted affairs. Therefore, banks should report the whereabouts of loan funds and the repayment of borrowers to customers.

6. Banks assist customers to collect the entrusted loan interest and overdue collection obligations. According to Article 404 of the Contract Law, the property acquired by the agent in handling the entrusted affairs shall be handed over to the principal. Accordingly, the bank should pay the entrusted loan interest charged to the borrower to the principal.

According to the entrusted loan contract, after entrusting loans overdue, the bank shall collect the loan from the borrower at the time and frequency agreed in the contract and notify the client in writing of the collection result. If the customer needs the bank's continued assistance to recover the entrusted loan, a written entrustment agreement shall be signed separately within the time stipulated in the contract.