In order to correctly hear disputes over private lending, according to the General Principles of Civil Law of People's Republic of China (PRC), Property Law of People's Republic of China (PRC), Guarantee Law of People's Republic of China (PRC), Contract Law of People's Republic of China (PRC), Civil Procedure Law of People's Republic of China (PRC), Criminal Procedure Law of People's Republic of China (PRC) and other laws and regulations,

Lawyer's explanation: the basis of explanation includes not only substantive law, such as property law, guarantee law and contract law, but also two major procedural laws, namely civil procedure law and criminal procedure law.

Article 1 The term "private lending" as mentioned in these Provisions refers to the financing behavior among natural persons, legal persons and other organizations and among them.

These provisions shall not apply to financial institutions and their branches engaged in loan business established with the approval of the financial supervision department, as well as disputes arising from loans and other related financial businesses.

Lawyer's interpretation: the definition of private lending, the scope of application of private lending subjects is natural persons, legal persons and other organizations; Excluding financial institutions and their branches, special provisions apply to disputes arising from the issuance of loans and other financial services, but it is not clear whether the companies that obtain small loans are applicable.

Article 2 When a lender brings a lawsuit to a people's court, it shall provide such creditor's rights certificates as IOUs, receipts, IOUs and other evidence that can prove the existence of the legal relationship between lending and borrowing.

If the creditor's rights certificate such as IOUs, receipts and IOUs held by the parties does not specify the creditor, and the party holding the creditor's rights certificate brings a private lending lawsuit, the people's court shall accept it. The defendant raised a factual defense against the plaintiff's creditor qualification. If the people's court considers that the plaintiff is not qualified as a creditor after trial, it shall rule to dismiss the prosecution.

Lawyer's interpretation: The principle of burden of proof distribution and the requirements of evidence proof stipulate that lenders need to provide not only proof of creditor's rights, but also proof of the existence of loan relationship.

Article 3 Where the borrower and the lender have not agreed or clearly agreed on the place of performance of the contract, and no supplementary agreement has been reached afterwards, and the place of performance of the contract cannot be determined according to the relevant provisions of the contract or trading habits, the place of performance of the contract shall be the place where the party receiving the money is located.

Lawyer's interpretation: it is of great significance for both parties to clarify the place of performance of the contract in private lending cases, which will be related to the court's litigation jurisdiction; Because the place where the contract is performed can be used as the jurisdiction basis for the court to accept the case; Where the agreement is unclear, the place of performance of the contract is the place where the party accepting the currency is located.

Article 4 Where the guarantor provides joint liability guarantee for the borrower and the lender only sues the borrower, the people's court may not add the guarantor as a co-defendant; If the lender only sues the guarantor, the people's court may add the borrower as a co-defendant.

Where the guarantor provides a general guarantee for the borrower and the lender only sues the guarantor, the people's court shall add the borrower as a co-defendant; If the lender only sues the borrower, the people's court may not add a guarantor as a co-defendant.

Lawyer's interpretation: the guarantee responsibility of private lending; Whether the court should add * * * to the guarantor, as a joint guarantee or a general guarantee, has been made clear to the defendant.

Article 5 After placing a case on file, if the people's court finds that private lending itself is suspected of illegal fund-raising, it shall rule to dismiss the prosecution and transfer the clues and materials suspected of illegal fund-raising to the public security or procuratorial organs.

If the public security and procuratorial organs refuse to file a case, or the case is dismissed after investigation, or the procuratorial organs make a decision not to prosecute, or the effective judgment of the people's court finds that it does not constitute the crime of illegal fund-raising, the people's court shall accept the case.

Lawyer's Interpretation: The Provisions on How Courts Handle Criminal Cases, namely Civil and Criminal Cases, defines three ways to deal with private lending and illegal fund-raising; One of the basic principles is criminal before civil.

Article 6 If a people's court finds clues and materials related to a private lending dispute case but different from the facts, it shall continue to try the private lending dispute case and transfer the clues and materials suspected of illegal fund-raising to the public security or procuratorial organs.

Lawyer's interpretation: Although it is related to the private lending case, it is not the same fact. The court can continue the trial, but it needs to transfer the criminal clues and evidence materials to the public security organs or procuratorial organs.

Article 7 The basic facts of a private lending case must be based on the trial results of a criminal case. If the criminal case has not been concluded, the people's court shall make a ruling to suspend the proceedings.

Lawyer's interpretation: if the basic facts of private lending need criminal judgment, it is impossible to find out the facts of the case; The court needs to suspend the trial of private lending.

Article 8 If the borrower is suspected of committing a crime or is found guilty by an effective judgment, and the lender sues the guarantor for civil liability, the people's court shall accept it.

Lawyer's interpretation: after the borrower is suspected of committing a crime or is convicted, the guarantor is not exempted from the guarantee responsibility. It is necessary to determine whether there is fault according to the effectiveness of the loan contract or guarantee contract signed at that time, so as to determine the civil liability of the guarantor.

Article 9 Under any of the following circumstances, it can be regarded as having the effective requirements for a loan contract between natural persons as stipulated in Article 210 of the Contract Law:

(1) Pay in cash from the date when the borrower receives the loan;

(2) If the payment is made by bank transfer, online electronic remittance or online loan platform, it shall start from the date when the funds reach the borrower's account;

(3) If the bill is delivered, it shall be from the date when the borrower obtains the bill right according to law;

(4) When the lender authorizes the borrower to control a specific fund account, the borrower obtains actual control over the account;

(5) The lender provides the loan in other ways agreed with the borrower and actually performs it.

Lawyer's interpretation: re-establish the private loan contract between natural persons as a practical contract; That is, the effectiveness of the contract is based on cash delivery; At the same time, it also establishes the way to obtain the right of bill as a natural person to provide loans; In addition, it is clearly stipulated that P2P platform and other media loan methods can be used.

Article 10 Except for the loan contract between natural persons, if the parties claim that the private loan contract will take effect upon the establishment of the contract, the people's court shall support it, unless otherwise agreed by the parties or stipulated by laws and administrative regulations.

Lawyer's interpretation: Except for loans between natural persons, loan contracts between other entities are non-contractual contracts, except those expressly agreed by the parties.

Article 11 The people's court shall support the non-governmental loan contract concluded between legal persons or other organizations for the needs of production and operation, except under the circumstances stipulated in Article 52 of the Contract Law and Article 14 of these Provisions, if the parties claim that the non-governmental loan contract is valid.

Lawyer's interpretation: Regarding the effectiveness of inter-enterprise lending, this article clarifies the effectiveness of inter-enterprise lending contracts, which breaks through the relevant provisions of the General Principles of Loans to a certain extent; However, it should be noted that the purpose of lending is to meet the needs of production and operation; Whether to allow inter-enterprise lending for other purposes such as investment is not clearly defined, which is also a highlight of this explanation.

Article 12 Legal persons or other organizations raise funds from employees in the form of loans within their own units for the production and operation of their own units. There are no circumstances as stipulated in Article 52 of the Contract Law and Article 14 of these Provisions, and if the parties claim that the private lending contract is valid, the people's court shall support it.

Lawyer's interpretation: It clearly establishes the legality of the enterprise to raise funds from employees by borrowing in this unit, but the premise is that the raised funds must be used for the production and operation of this unit.

Article 13 If the borrower or lender's lending behavior is suspected of committing a crime, or the effective judgment determines that it constitutes a crime, and the parties file a civil lawsuit, the private lending contract may not be invalid. The people's court shall, in accordance with the provisions of Article 52 of the Contract Law and Article 14 of these Provisions, determine the validity of private lending contracts.

If the guarantor claims not to bear civil liability on the grounds that the borrower's or lender's lending behavior is suspected of committing a crime or that the effective judgment has determined that it constitutes a crime, the people's court shall determine the civil liability of the guarantor according to the effectiveness of the private lending contract and the guarantee contract and the degree of fault of the parties.

Lawyer's interpretation: This article clarifies that if the borrower or lender constitutes a crime, the validity of the private lending contract is certainly not invalid, and the guarantor cannot be exempted.

Article 14 In any of the following circumstances, the people's court shall consider the private loan contract invalid: (1) Absorbing credit funds from financial institutions and usuring loans to borrowers, which the borrowers knew or should have known in advance; (2) The borrower knows or should know in advance that the funds obtained by borrowing from other enterprises or raising funds from employees of the unit are lent to the borrower for profit; (3) The lender knows in advance or should know that the borrower is still providing loans for illegal and criminal activities; (4) Violating public order and good customs; (five) other violations of the mandatory provisions of laws and administrative regulations.

Lawyer's Interpretation: With regard to the four specific situations in which private lending contracts are invalid and the bottom clauses, it is worth noting that the prerequisite for the invalidity of the first three situations must be the borrowing behavior that the borrower knows or should know.

Article 15 If the plaintiff files a private lending lawsuit based on the creditor's rights certificates such as IOUs, receipts and IOUs, and the defendant files a defense or counterclaim based on the basic legal relationship, and provides evidence to prove that the creditor's rights dispute is not caused by private lending, the people's court shall try it according to the basic legal relationship on the basis of finding out the facts of the case.

The provisions of the preceding paragraph shall not apply to the creditor-debtor agreement reached by the parties through mediation, reconciliation or liquidation.

Lawyer's interpretation: It is clear that this article only applies to disputes caused by private lending, and the creditor-debtor agreement reached by the parties through mediation, reconciliation or liquidation is not applicable.

Article 16 The plaintiff brings a private lending lawsuit only on the basis of creditor's rights certificates such as IOUs, receipts and IOUs, and the defendant argues that the loan has been repaid, and the defendant shall provide evidence to prove his claim. After the defendant provides corresponding evidence to prove his claim, the plaintiff should still bear the burden of proof for the establishment of the loan relationship.

If the defendant's defense loan behavior has not actually occurred and can make a reasonable explanation, the people's court shall comprehensively judge and verify whether the loan fact has occurred by combining the facts and factors such as the amount of loan, the delivery of money, the economic ability of the parties, the local or inter-party transaction methods, trading habits, the changes in the property of the parties, witness testimony, etc.

Lawyer's interpretation: the distribution of the burden of proof of the original defendant in the dispute of private lending contract is clarified; The focus and main points of the court's review and judgment.

Article 17 The plaintiff only brings a private lending lawsuit based on the transfer voucher of a financial institution, and the defendant claims that the transfer is to repay the previous loans or other debts of both parties, and the defendant shall provide evidence to prove his claim. After the defendant provides corresponding evidence to prove his claim, the plaintiff should still bear the burden of proof for the establishment of the loan relationship.

Lawyer's Interpretation: Clarify the distribution principle of burden of proof for disputes in private lending litigation based on transfer vouchers of financial institutions.

Article 18 According to the second paragraph of Article 174 of the Interpretation on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC), the plaintiff who bears the burden of proof refuses to appear in court without justifiable reasons, and the main facts of the case, such as the loan behavior, loan amount and payment method, cannot be confirmed after examination of the existing evidence, and the people's court will not recognize the facts it claims.

Lawyer's interpretation: the legal consequences of the plaintiff's failure to provide evidence are clarified.

Article 19 If a people's court finds any of the following circumstances in the trial of a private loan dispute case, it shall strictly examine the reasons, time, place, source of funds, mode of delivery, flow of funds, relationship between borrowers and lenders, economic situation and other facts, and comprehensively judge whether it is a false civil lawsuit: (1) The lender obviously does not have the ability to lend; (2) The facts and reasons brought by the lender are obviously unreasonable; (3) The lender is unable to submit the creditor's rights certificate or the creditor's rights certificate submitted may be forged; (four) both parties have participated in private lending litigation for many times within a certain period of time; (5) One party or both parties refuse to appear in court to participate in the litigation without justifiable reasons, and the entrusted agent's statement of the loan facts is unclear or inconsistent; (six) the parties have no dispute about the occurrence of the loan fact or the defense is obviously unreasonable; (seven) the borrower's spouse or partner, other creditors outside the case raised factual objections; (8) Other parties to the dispute transfer property at a low price; (nine) the parties give up their rights improperly; (10) Other circumstances in which there may be false private lending litigation.

Lawyer's interpretation: make clear ten situations of false civil litigation, such as the lender obviously does not have the ability to lend; The facts and reasons for the lender's prosecution are obviously unreasonable; The lender is unable to submit the creditor's rights certificate or the creditor's rights certificate submitted may be forged; Both parties have participated in private lending litigation for many times within a certain period of time; One or both parties refuse to appear in court to participate in the litigation without justifiable reasons, and the entrusted agent's statement of the loan facts is unclear or inconsistent; The parties have no dispute about the occurrence of the loan facts or the defense reasons are obviously unreasonable, which further guides the court judges to comprehensively analyze and judge whether the facts of the case belong to false civil litigation.

Article 20 If the plaintiff applies to withdraw the lawsuit that is deemed to be a false private lending lawsuit, the people's court shall not allow it, and shall make a judgment rejecting his request in accordance with the provisions of Article 112 of the Civil Procedure Law.

If a litigant participant or any other person maliciously creates or participates in false litigation, the people's court shall, in accordance with the provisions of Articles 111, 112 and 113 of the Civil Procedure Law, impose fines and detention according to law; If the case constitutes a crime, it shall be transferred to a judicial organ with jurisdiction for criminal responsibility.

If a unit maliciously manufactures or participates in false litigation, the people's court shall impose a fine on the unit, and may impose a fine or detention on its principal responsible person or the person directly responsible; If the case constitutes a crime, it shall be transferred to a judicial organ with jurisdiction for criminal responsibility.

Lawyer's interpretation: the legal consequences of false civil litigation will not only be rejected by civil judgments, but also be subject to administrative penalties. If the circumstances are serious enough to constitute a crime, it shall be transferred to a judicial organ with jurisdiction for criminal responsibility.

Article 21 If another person signs or seals the creditor's rights certificate or loan contract, such as IOUs, receipts and IOUs, but fails to show that he is the guarantor or assumes the guarantee responsibility, or cannot be presumed as the guarantor through other facts, and the lender requests him to assume the guarantee responsibility, the people's court will not support it.

Lawyer's interpretation: the identification of the guarantor's identity and the commitment of the guarantee responsibility are clarified. If others fail to identify themselves as guarantors or assume the suretyship responsibility, or cannot be presumed as guarantors through other facts, they need not assume the suretyship responsibility.

Article 22 Lenders and borrowers form a lending relationship through the online lending platform. The online lending platform provider only provides media services, and the people's court will not support it if the parties request it to assume the guarantee responsibility.

The people's court shall support the online loan platform provider who expressly provides a guarantee for the loan through websites, advertisements and other media or has other evidence to prove that the lender requests the online loan platform provider to assume the guarantee responsibility.

Lawyer's interpretation: Regarding the responsibility of p2p lending platform, p2p is not allowed to provide any form of guarantee. Peer-to-peer lending platform providers shall bear the guarantee liability if they clearly indicate through web pages, advertisements or other media or have other evidence to prove that they provide guarantee for loans.

Article 23 If the legal representative or person in charge of an enterprise signs a private loan contract with the lender in the name of the enterprise, and the lender, the enterprise or its shareholders can prove that the loan belongs to the legal representative or person in charge of the enterprise, and the lender requests that the legal representative or person in charge of the enterprise be listed as a co-defendant or a third party, the people's court shall allow it.

If the legal representative or person in charge of an enterprise signs a private loan contract with the lender in the name of an individual, and the loan is used for the production and operation of the enterprise, and the lender requests the enterprise and the individual to share the responsibility, the people's court shall support it.

Lawyer's Interpretation: Regarding the determination of the loan contract signed by the legal representative or person in charge of the enterprise, this article clearly regards the principle of actual use as a way to judge the legal relationship of lending and the responsibility of private lending, so as to judge the joint and several liabilities that enterprises and individuals may bear.

Article 24 If the parties sign a sales contract as a guarantee for a private lending contract, and the borrower cannot repay the loan after the loan expires, and the lender requests to perform the sales contract, the people's court shall try the case according to the legal relationship of private lending, and explain to the parties the reasons for requesting to change the lawsuit. If the parties refuse to change, the people's court shall rule to dismiss the prosecution.

After the judgment made in accordance with the legal relationship of private lending becomes effective, if the borrower fails to perform the monetary debt determined by the effective judgment, the lender may apply for auction of the subject matter of the sales contract to pay off the debt. The borrower or lender has the right to demand the return or compensation of the difference between the auction proceeds and the repayable loan principal and interest.

Lawyer's Interpretation: The identification and handling of the mixed situation of private lending contract and sales contract clearly stipulates that the parties can sign a sales contract as a guarantee for private lending contract. If the borrower cannot repay the loan after the loan expires and the lender requests to perform the sales contract, the people's court shall hear the case according to the legal relationship of private lending, and make a judgment according to the legal relationship of private lending after the trial. If the borrower fails to perform the monetary debt determined by the effective judgment, the lender may apply for auction of the subject matter of the sales contract to repay the debt and safeguard its legitimate rights and interests.

Article 25 If the borrower and the lender have not agreed on the interest, and the lender claims to pay the interest during the loan period, the people's court will not support it.

If the interest agreement between natural persons is unclear and the lender claims to pay interest, the people's court will not support it. Except for the loan between natural persons, if the agreement between the borrower and the lender on the loan interest is unclear, and the lender claims interest, the people's court shall determine the interest according to the contents of the private loan contract, the local or the parties' trading methods, trading habits, market interest rates and other factors.

Lawyer's interpretation: the borrower and lender have not agreed on interest and the legal consequences of unclear interest agreement; If no interest is agreed, the lender's claim to pay interest during the loan period will not be supported; If the interest agreement is not clear, the loan interest between natural persons will not be supported, and the loan interest agreement between other entities is not clear. Interest should be determined according to the contents of private lending contracts and the local or party's trading methods, trading habits, market interest rates and other factors.

Article 26 If the interest rate agreed between the borrower and the lender does not exceed the annual interest rate of 24%, and the lender requests the borrower to pay interest at the agreed interest rate, the people's court shall support it.

The interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36%, and the interest agreement in excess is invalid. The people's court shall support the borrower's request to the lender to return the part of the interest paid that exceeds 36% per annum.

Lawyer's interpretation: this article breaks through the judicial interpretation of 199 1 year four times the interest rate; At the same time, 24% and 36% are stipulated, and two lines and three zones are delineated, namely, legal protection zone, natural debt zone and legal invalid zone.

Article 27. The loan amount specified in debt certificates such as IOUs, receipts and IOUs is generally recognized as the principal. If interest is deducted from the principal in advance, the people's court shall confirm the actual amount lent as the principal.

Lawyer's interpretation: The private loan contract with interest deducted in advance has a clear agreement, and the principal amount is subject to the actual loan amount.

Article 28 After both borrowers and borrowers settle the principal and interest of the previous loan, they will include the interest in the principal of the latter loan and issue a new certificate of creditor's rights. If the previous interest rate does not exceed the annual interest rate of 24%, the amount specified in the reissued creditor's rights certificate can be confirmed as the later loan principal. Excess interest cannot be included in the future loan principal. If the agreed interest rate exceeds the annual interest rate of 24%, and the parties claim that the excess interest cannot be included in the later loan principal, the people's court shall support it.

According to the calculation in the preceding paragraph, the sum of the principal and interest payable by the borrower after the expiration of the loan term cannot exceed the sum of the initial loan principal and the interest of the whole loan term calculated at the annual interest rate of 24% based on the initial loan principal. If the lender requests the borrower to pay the excess, the people's court will not support it.

Lawyer's interpretation: interest and interest rate clauses in private lending contracts; After paying off the principal and interest of the previous loan, the interest is included in the principal of the later loan, and if the creditor's rights certificate is issued again, it shall not exceed 24% of the annual interest rate; When the later loan principal is included, the sum of the principal and interest payable by the borrower after the expiration of the loan term cannot exceed the sum of the initial loan principal and the interest of the whole loan term calculated at the annual interest rate of 24% based on the initial loan principal.

Twenty-ninth borrowers and lenders have agreed on overdue interest rates, which shall be implemented in accordance with the agreement, but the annual interest rate shall not exceed 24%. If the overdue interest rate is not agreed or clearly agreed, the people's court may handle it according to different circumstances:

(1) The lender claims that the borrower should pay the interest during the period of capital occupation at the annual interest rate of 6% from the date of overdue repayment, and the people's court should support it because the interest rate during the loan period has not been agreed;

(2) If the interest rate during the loan period is agreed, but the overdue interest rate is not agreed, the people's court shall support the lender to claim that the borrower shall pay the interest during the capital occupation period according to the interest rate during the loan period from the date of overdue repayment.

Interpretation by lawyers: Make clear the calculation basis of overdue interest rate in private lending contracts, and limit it to annual interest rate of 24%; Neither the interest rate during the loan period nor the overdue interest rate has been agreed upon, and the interest during the fund occupation period shall be paid at the annual interest rate of 6% from the date of overdue repayment; If the interest rate during the loan period is agreed, but the overdue interest rate is not agreed, the interest during the capital occupation period can be paid according to the interest rate during the loan period from the date of overdue repayment.

Article 30 The lender and the borrower have agreed on overdue interest rate, liquidated damages or other expenses. The lender may choose to claim overdue interest, liquidated damages or other expenses, or both, but the people's court will not support the part exceeding 24% of the annual interest rate.

Lawyer's interpretation: It is clear that if overdue interest is stipulated in the private lending contract and liquidated damages are agreed at the same time, the limit of the total amount cannot exceed 24% of the annual interest rate, and some courts will not support it.

Article 31 If the borrower voluntarily pays interest or liquidated damages without agreeing on interest, or if the interest or liquidated damages exceed the agreed interest rate and do not harm the interests of the state, the collective and the third party, the people's court will not support it, unless the borrower requests to return the interest exceeding 36% per annum.

Lawyer's interpretation: it is clear that private lending does not stipulate interest, and the interest paid by the borrower belongs to the scope of natural debt. The borrower can't demand repayment from the lender, but it can demand repayment if it pays interest exceeding 36% per annum.

Article 32 The borrower may repay the loan in advance, unless otherwise agreed by the parties. If the borrower repays the loan in advance and claims to calculate the interest according to the actual loan period, the people's court shall support it.

Lawyer's interpretation: the provisions of early repayment of private lending; If there is no agreement, the loan can be repaid in advance, and the interest is calculated according to the actual loan period.

Article 33 After the promulgation and implementation of these Provisions, the Opinions on Handling Loan Cases by People's Courts issued by the Supreme People's Court on August 3rd 199 1 shall be abolished at the same time; If the judicial interpretation previously issued by the Supreme People's Court is inconsistent with these Provisions, it shall no longer apply.

Lawyer's Interpretation: This regulation shall come into force on September 20 15 1 day, and the Opinions of People's Courts on Handling Loan Cases issued on August 199 13 shall be abolished at the same time.