Article 3 of the Civil Procedure Law
The provisions of this Law shall apply to the people's courts in accepting civil lawsuits brought by citizens, legal persons, other organizations and among them because of property relations and personal relations.
First, the loan procedures should be complete.
No matter how good the loan relationship is, you should also make an IOU when borrowing money. No IOU is the biggest legal risk. When hearing a loan case, the court shall require the plaintiff to provide a written loan. If there is no written loan, the necessary factual basis shall be provided. If there is no evidence, you have to bear the risk of losing the case. Therefore, when borrowing money, the borrower should take the initiative to write a written loan, and the lender should also remind the other party to write a loan. In case of special circumstances, if it is impossible to make an iou on the spot, a third person shall testify and make up the iou afterwards. When repaying, the repayment person should pay attention to take back the IOUs or destroy them together. If the lender claims that the loan is lost or damaged, the repayment shall require the lender to issue a receipt, and the repayment shall properly keep the receipt.
Second, pay attention to the identity of the debtor.
At this time should pay attention to:
(1) The creditor shall examine the identity document of the debtor and require the debtor to write the IOU in person. If the debtor gives the creditor a pre-written IOU, it does not rule out the possibility that the debtor's signature in the IOU is signed by someone else. When creditors demanded money back, they refused to pay back on the grounds that it was not their own handwriting. If the IOU is printed, it is best to ask the borrower to sign, stamp and fingerprint the borrower's signature column.
(2) If the borrower is also the legal representative or person in charge of a company, the creditor must make it clear whether the debtor is the borrower himself or the company or enterprise he represents. Legally speaking, the legal representative or person in charge can engage in civil acts including payment on behalf of the company or enterprise. If the creditor is not clear about the identity of the debtor, there may be confusion about the identity of the borrower. The direct consequence is that creditors will face mutual prevarication between companies or enterprises and borrowers in future lawsuits, which will bring trouble to the realization of creditor's rights.
In addition, when you lend money to your friend, you'd better leave a copy of his ID card to prepare for possible lawsuits in the future. Therefore, the IOU must be filled out by the debtor himself.
Third, the language problem.
Don't use polysyllabic and polysemous words to write IOUs. Our country's culture is profound, and many Chinese characters have the phenomenon of multi-tone and multi-interpretation. Once these Chinese characters are used on IOUs, they may cause disputes. For example, "paying back 10,000 yuan" can be understood as "paying back 10,000 yuan" or "owing 10,000 yuan".
Fourth, the issue of interests.
The interest rate should conform to the regulations. The interest rate of private lending can be appropriately higher than the bank's interest rate, but it shall not exceed 4 times of the bank's similar loan interest rate (including interest rate). Otherwise, excess interest is not protected.
Lending can be divided into interest-bearing lending and interest-free lending, in which the interest rate of production and operation lending between citizens can be appropriately higher than that of living lending. The Contract Law stipulates: "When the loan contract between natural persons stipulates to pay interest, the loan interest rate shall not violate the relevant provisions of the state on limiting the loan interest rate." At present, the state stipulates that the interest rate of private loans is at most four times that of similar loans of banks. The interest rate of usury is not protected by the state.
Interest may be agreed, but the interest shall not be higher than 4 times of the bank's interest rate for the same period, and the higher court will not support it. If there is no agreement on interest, according to the provisions of the Contract Law, if there is no agreement or unclear agreement on the payment of interest in the loan contract between natural persons, it shall be regarded as not paying interest. Personal loans between citizens, if there is no agreed interest, are regarded as interest-free. If there is no agreement on the debt, there will be no interest, but if it is not repaid after the repayment date, you can ask to calculate the interest according to the bank interest.
Verb (abbreviation of verb) time problem
In private lending, there are two controversial times: repayment time and writing time.
The repayment time is the time when the creditor and the debtor agree to repay the principal and interest. In reality, people often ignore this agreement or fail to make a clear agreement. The most common expression is repayment after a certain period of time, such as repayment after one year. "One year later" is literally a time period, not a time point. Repayment after two, three or more years can be understood as "repayment after one year". Although there are certain interpretation rules in law, this writing method increases the uncertainty of realizing creditor's rights after all. The uncertainty of repayment time also easily leads to the dispute of limitation of action in practice. Therefore, when agreeing on the repayment time, it is best to specify the year, month and day.
The formation time of IOUs is usually the time when debtors write IOUs. The appointment of this time should also be specific to the year, month and day. In practice, the debtor often writes this date intentionally or unintentionally, or only writes a part of the year, month and day. If the debtor only states June 25th. Although both creditors and debtors know this time when writing IOUs, it is inevitable that there will be disputes over the formation time of IOUs. However, the ambiguity of the formation time of IOUs may bring difficulties to the calculation of the limitation of action. Creditors may have to face the legal problem of whether the IOU exceeds the limitation of action. Although it is possible to determine the formation time of documents through physical evidence identification, it is not absolutely reliable and will increase the cost of the parties.
If there is no agreed repayment period, the borrower can return it at any time, and the lender can demand it at any time.
6. Keep the IOUs properly.
Special attention should be paid to prevent the white bars from being stolen, lost and polluted, and the storage place should be safe and reliable, not easy to get wet and not in contact with chemicals. At the same time, it is best to make several copies, and then you can issue copies to the borrowers first to ensure the safety of the original.
Seven, the dunning problem
Ask for a timely reminder. Unless otherwise provided by law, the limitation of action for requesting protection of civil rights from the people's court shall be two years. After the loan expires, the creditor shall require the debtor to repay the loan in time, and shall not delay the timely payment due to circumstances or other reasons. If the debtor fails to repay for a while, the lender may require the borrower to write a repayment plan or a reminder before the expiration of the limitation of action, so that the limitation of action will be recalculated from the date of conclusion of a new agreement. If the debtor still fails to perform or escapes on schedule, the creditor shall bring a lawsuit to the court within 2 years after the loan expires and collect it according to law, otherwise it will be regarded as giving up the creditor's right and the law will not protect it.
Eight, loan guarantee preparation.
This is not a necessary condition. Lenders should pay attention to borrowers' repayment ability. For large or risky loans, the borrower may be required to provide corresponding property mortgage, or find a third person with economic strength as a guarantor. In addition, if the borrower and the borrower renegotiate the repayment period or interest rate without the consent of the guarantor, the guarantor will no longer bear the guarantee responsibility. Both mortgage and guarantee should be signed in writing.
When you pay back the money, you can get the loan back.
When you pay back the money, you should ask for a loan on the spot. If the other party loses the loan or can't find it for a while, you should ask the other party to write down the receipt on the spot.