It will be better if you pay the premium in batches. If you pay the premium in installments, it will also have a certain impact on your later renewal. Maybe the funds are cut off. You may lose your insurance.
Legal knowledge supplement:
I. General principles
Loan refers to a commercial activity in which the lender provides monetary funds to the borrower, and the borrower repays the principal and interest at the agreed interest rate and time limit. In the legal relationship of loan contract, the borrower is the borrower and the lender is the lender.
Lawyers' business in bank loans mainly includes: examining borrowers and their legal qualifications; Participate in the drafting, negotiation or review of loan agreements; Providing legal advice and services to both borrowers and borrowers during the performance of the loan contract; Solve disputes in the performance of loan contracts. By participating in bank loan activities, lawyers help borrowers and borrowers to sign and perform loan contracts according to law, which can help the parties achieve their respective business objectives, prevent and resolve various legal risks in loan business, and promote the smooth development of loan business.
These Operating Guidelines are formulated in accordance with the General Principles of the Civil Law, the Contract Law, the General Principles of Loans, the Law on Commercial Banks, the relevant provisions and judicial interpretations of the banking regulatory agencies in China (in this paper, the People's Bank of China or the China Banking Regulatory Commission) and the Supreme People's Court, and are mainly applicable to the loan business in which domestic commercial banks provide RMB funds to domestic enterprises, and provide general guidance for lawyers to handle such loan business. These operating guidelines are not applicable to financing activities with special arrangements such as syndicated loans, project financing and secured loans.
Two. Relevant qualification examination of the parties concerned
When undertaking corporate loan legal business, lawyers should first conduct legal review on the subject qualifications of the parties to the loan contract to ensure the legality and effectiveness of the loan contract.
(1) Qualification requirements of the borrower
As a lawyer of the borrower, he should review all aspects of the borrower's conditions according to relevant laws and provide relevant legal opinions to help the borrower meet the statutory qualification requirements for borrowing; As a lawyer of a bank, he should help the bank to examine the qualifications of borrowers and ensure that the borrowers who lend by the bank meet the statutory loan qualification requirements.
According to the relevant provisions of the General Principles of Loans, an enterprise as a borrower should be an enterprise (enterprise legal person) or other economic organization approved and registered by the administrative department for industry and commerce (or competent authority). Lawyers should examine the legal establishment and existence of borrowers:
1. For a limited liability company or a joint stock limited company, the business license of the enterprise as a legal person shall be reviewed;
2. For foreign-invested enterprises, in addition to the business license of the enterprise as a legal person, the approval certificate of the foreign-invested enterprise shall also be examined;
3. For the branch of an enterprise as a legal person, it is necessary to review the business license of the branch;
4. All kinds of enterprises shall pass the annual inspection of the administrative department for industry and commerce, except natural persons and some enterprise legal persons who do not need the approval and registration of the industrial and commercial department;
(2) Borrower's qualification certificate: loan certificate.
In order to effectively reflect the repayment situation of enterprises, reduce the loan risk of financial institutions, and establish a self-restraint mechanism for credit management, the People's Bank of China has formulated the Measures for the Administration of Loan Certificates, which makes it clear that enterprises are only qualified to go through the loan repayment procedures after obtaining a loan certificate. The so-called loan certificate is the qualification certificate issued by the China Banking Regulatory Authority to registered legal person enterprises to apply for loans from domestic financial institutions.
A city legal person enterprise that implements the loan certificate management system must apply for a loan certificate if it intends to apply for a loan or has a loan repayment relationship with a financial institution. An enterprise as a legal person can only apply for a loan certificate from the issuing authority at the place of registration. A corporate enterprise can only apply for one loan certificate. Loan certificates can be used in cities that implement the loan certificate management system.
(3) Qualification requirements of the lender
According to the relevant provisions of the Law on Commercial Banks and the General Rules on Loans, the lender must obtain the approval of the banking supervision institution in China, hold the Legal Person License for Financial Institutions or the Business License for Financial Institutions issued by the banking supervision institution in China, and be approved and registered by the administrative department for industry and commerce.
As a lawyer of the lender, he should reasonably remind the lender that he must abide by the Law on Commercial Banks and the monitoring indicators of China's banking regulatory authorities on the ratio of assets to liabilities of commercial banks.
Three. Procedures for signing loan contracts
(1) loan application
When a borrower applies for a loan from an agency of a commercial bank, a lawyer shall provide the borrower with the following assistance:
(1) Legal review of loan application;
(2) Assist the borrower to fulfill the company authorization procedures required for loan application;
(3) Assist the borrower to conduct legal review on the basic situation of the project.
(2) loan investigation and approval
After accepting the borrower's application, the lender's lawyer shall cooperate with the bank to investigate the legality, safety and profitability of the borrower's loan, verify the collateral, pledge and guarantor, and determine the loan risk. This is an important link in the loan business and an important guarantee for the safety of bank credit funds. The borrower's lawyer may prompt the borrower to cooperate with the bank's investigation and evaluation to realize the loan.
In order to ensure the safety of bank loans, lawyers should also assist banks to conduct legal review on customers who apply for loans, including whether the purpose and purpose of loans are in line with national laws and regulations, industrial policies and credit policies, whether the loan application documents meet legal requirements, whether the borrower is legally established and effectively exists, whether the borrower has legal loan qualifications, whether the borrower has obtained all necessary government approvals, and whether the borrower's company authorization is sufficient.
In addition, lawyers should remind lenders not to issue credit loans to related parties. At the same time, the conditions for granting secured loans to related parties shall not be superior to those for similar loans of other borrowers. Among them, related parties refer to:
1. Directors, supervisors, managers, credit business personnel and their close relatives of commercial banks;
2. Companies, enterprises and other economic organizations in which the personnel listed in the preceding paragraph invest or hold senior management positions.
(3) Drafting and signing loan contracts
Article 37 of the Commercial Bank Law and Article 29 of the General Rules for Loans stipulate that all loans shall be signed by both borrowers and borrowers. Loan contracts are usually drafted by lawyers. The loan contract shall stipulate the type, purpose, amount, interest rate, term, repayment method, rights and obligations of both borrowers and borrowers, liabilities for breach of contract and other matters that both parties think need to be agreed.
Four. The main contents of the loan contract
(a) the loan contract generally has the following important terms:
1. Use of the loan
The purpose of the loan refers to the scope of use of the loan. The borrower shall use the loan for the agreed purpose and shall not use it for illegal purposes.
Clarifying this clause can protect the borrower's right to use funds; For lenders, it can supervise the use of funds and control risks.
The reasons for restricting the use of the loan are as follows: First, if the borrower uses the loan for illegal purposes, the loan contract is invalid according to some national laws, such as American laws, with the knowledge of both borrowers and borrowers. Even if the lender does not know the illegal use when using the loan, once the lender knows the illegal use, it must stop the borrower from continuing to withdraw money, so as not to acquiesce in the illegal use and lose the right to demand compulsory recovery of the loan. Secondly, restricting the use of loans is to ensure the source of repayment funds. If the loan is not used according to the agreed purpose, the borrower may lose the repayment ability due to improper operation. In addition, the internal operating policies of lending banks may have restrictions on the industries or departments that issue loans, and government regulations and decrees sometimes have similar provisions. Finally, restricting the use of loans may also be because it involves the interests of third parties. For example, in export credit projects, the use of loans is limited to specific payment targets.
The General Rules for Loans also stipulates the following restrictions on the use of loans:
1. The borrower shall not use the loan to engage in equity investment, unless otherwise stipulated by the state.
2. The borrower shall not use the loan to engage in securities and futures speculation.
3. Except for borrowers who have obtained real estate qualifications according to law, they may not use loans to engage in real estate business; Borrowers who have obtained real estate business qualifications according to law shall not use loans to engage in real estate speculation.
4. The borrower shall not seek illegal income through loans.
2. Loan amount
The loan amount is the quantity clause in the loan contract and the specific amount provided by the lender to the borrower. This is the main basis for calculating loan interest.
3. Loan type
According to different lenders, it can be divided into self-operated loans, entrusted loans and specific loans:
(1) Self-operated loans refer to loans independently issued by the lender with funds raised by legal means, with risks borne by the lender and principal and interest recovered by the lender.
(2) Entrusted loan refers to the loan that the lender issues, supervises the use and assists to recover on behalf of the principal according to the loan object, purpose, amount, term and interest rate determined by the principal. The lender (trustee) only charges the handling fee and does not bear the loan risk.
(3) Special loans refer to loans granted by wholly state-owned commercial banks after taking corresponding remedial measures for possible losses caused by loans with the approval of the State Council. Wholly state-owned banks refer to China Industrial and Commercial Bank, China Agricultural Bank, China Bank and China Construction Bank.
According to the different repayment periods, it can be divided into short-term loans, medium-term loans and long-term loans:
(1) Short-term loans refer to loans with a loan term of 1 year (inclusive). Short-term loans are flexible, short-term, highly liquid, fast in turnover and in great demand. Judging from the specific practices of financial institutions, there are mainly three months, six months, nine months and one year. Short-term loans are one of the most important businesses of financial institutions.
(2) Medium-term loans refer to loans with a loan term of more than 1 year (excluding 1 year) to less than 5 years (including 5 years).
(3) Long-term loans refer to loans with a loan term of more than 5 years (excluding 5 years).
According to the security of the loan, it can be divided into credit loan, secured loan and bill discount:
(1) The so-called credit loan means that the borrower can withdraw the loan from the bank completely based on his own credit without providing collateral.
(2) Secured loans refer to secured loans, mortgage loans and pledged loans. Guaranteed loan refers to the loan issued by a third party in the form of guarantee as stipulated in the Guarantee Law, which promises that the borrower will bear the general guarantee liability or joint liability according to the agreement when the loan cannot be repaid. Mortgage loan refers to the loan issued with the property of the borrower or a third party as collateral according to the mortgage method stipulated in the Guarantee Law. Pledged loan refers to the loan that is issued with the movable property or rights of the borrower or the third party as the pledge according to the pledge method stipulated in the Guarantee Law.
(3) Bill discount refers to the loan issued by the lender by purchasing the unexpired commercial paper of the borrower.
In practice, according to the use of loan funds, loans can also be divided into working capital loans and fixed assets loans.
The classification of the above loans is cross, and the loan types in general loan contracts will involve the above types at the same time. In the practice of loan, it has no positive significance to classify the loan types intuitively and mechanically, mainly through this difference to correctly regulate the loan behavior.
4. Term of loan
Refers to the borrower's production and operation cycle, repayment ability and lender's capital supply ability, which are determined by the borrower and lender through consultation and specified in the loan contract.
The longest term of self-operated loans generally does not exceed 65,438+00 years. If it has been more than 65,438+00 years, it shall be reported to the China Banking Regulatory Authority for the record. The longest discount period of bill discount shall not exceed 6 months, from the discount date to the maturity date of the bill.
If the borrower fails to repay the loan on time, it shall apply to the lender for extension before the loan expires. Whether the extension is decided by the lender. When applying for extension of secured loan, mortgage loan or pledged loan, the guarantor, mortgagor and pledgor shall also issue a written consent certificate. If there is an agreement, it shall be implemented in accordance with the agreement.
The cumulative extension period of short-term loans shall not exceed the original loan period; The cumulative extension period of medium-term loans shall not exceed half of the original loan period; The cumulative extension period of long-term loans shall not exceed 3 years. Unless otherwise stipulated by the state. If the borrower fails to apply for extension or the application for extension is not approved, the loan will be transferred to the overdue loan account from the day after the maturity date.
5. Loan interest
The lender shall determine the interest rate of each loan according to the upper and lower limits of the loan interest rate stipulated by the China Banking Regulatory Authority, and specify it in the loan contract.
Short-term loans (with a term of less than one year, including one year) shall bear interest at the legal loan interest rate of the corresponding grade on the signing date of the loan contract. During the loan contract period, in case of interest rate adjustment, interest will not be calculated by installments. Short-term loans are settled quarterly, and the 20th day of the last month of each quarter is the settlement date; If the interest is settled on a monthly basis, the 20th of each month is the interest settlement date. The specific interest settlement method shall be determined by the borrower and the lender through consultation. Interest that cannot be paid on schedule during the loan period shall be compounded quarterly or monthly according to the loan contract interest rate, and after loans overdue, at the default interest rate. When the last loan is paid off, the profit will be paid off with the principal.
The interest rate of medium and long-term loans (with a term of more than one year) should be fixed at one year. The loan (including all the funds that should be allocated by installments within one year from the effective date of the loan contract) bears interest according to the legal loan interest rate of the corresponding grade on the effective date of the loan contract, and one year later, the interest rate of the next year is determined according to the legal loan interest rate of the corresponding grade at that time (the first loan is paid by installments). Medium and long-term loans are settled quarterly, and the 20th of the last month of each quarter is the settlement date. The interest that cannot be paid on schedule during the loan period shall be compounded quarterly according to the contract interest rate, and after loans overdue, it shall be compounded at the default interest rate.
Discount interest shall be charged in one lump sum at the discount rate determined on the discount date.
The trust loan interest rate shall be determined by the entrusting parties through consultation within the range of not exceeding the legal loan interest rate level (including floating) of the same period and grade; The lease loan interest rate shall be subject to the legal loan interest rate (including floating) of the same grade in the same period.
Loan extension, cumulative calculation of term. When the cumulative term reaches the new interest rate term grade, interest will be calculated at the same grade interest rate listed on the extension date from the date of extension; If the new term grade cannot be reached, the interest will be calculated at the original grade interest rate on the extension date.
withdraw cash
Loan contracts usually stipulate the specific time limit for the borrower to withdraw money, and stipulate that the borrower will notify the lender a few days before withdrawing money. The loan contract generally does not stipulate the borrower's withdrawal obligation, but only grants the borrower the right to withdraw money when it needs funds. However, if the borrower does not withdraw the loan, the lender will usually ask the borrower to pay the fees promised by the lender.
If the lender fails to grant the loan to the borrower as agreed in the loan contract, the borrower may demand damages, but generally cannot demand actual performance. The calculation principle of damages is the loss that can be reasonably foreseen due to breach of contract at the time of contracting.
7. Repayment
The loan contract generally has specific provisions on the time limit and the way for the borrower to repay the loan. The borrower shall repay the loan principal and interest in full and on time in accordance with the provisions of the loan contract. The lender shall issue a notice of repayment of principal and interest to the borrower before the short-term loan expires 1 week and the medium-and long-term loan expires 1 month; The borrower shall prepare funds in time and repay the principal and interest on time.
8. Advance payment
Generally, there are some restrictions on this clause in the loan contract, and the provisions are relatively detailed, mainly because the lender can guarantee the expected return on its investment. The specific content is mainly stipulated in the following aspects:
(1) Voluntary prepayment;
(2) Compulsory prepayment;
(3) Voluntary cancellation of quotas;
(4) Repayment in advance and cancellation of lines due to specific reasons such as tax, market disorder and increased cost.
9. prerequisites
Not all loan contracts are executed immediately after signing, and some can only be executed after certain conditions stipulated in the contract are met. Even after the loan is implemented, it is usually necessary to meet further conditions every time the loan is withdrawn. These conditions are prerequisites for the loan contract. Only when these preconditions are mature, the borrower has the right to recover the loan, and the lender has the obligation to give the loan. The content of preconditions can be different according to different situations, which can generally be divided into two categories: one is the preconditions involving all obligations under the loan contract; The other is the prerequisite for each loan.
The prerequisite of all obligations under the loan contract is to make the lender temporarily stop the obligation to give loans before receiving satisfactory written evidence and relevant documents to prove that all legal matters related to the loan contract have been properly arranged and the required guarantees have been implemented. This is very important to protect the interests of lenders. These prerequisites include:
(1) Provide company business license;
(2) Provide copies of all necessary power of attorney, such as resolutions of shareholders' meeting or board of directors;
(3) Provide the organizational documents of the borrower, such as the articles of association;
(4) Providing lawyer's advice (if necessary);
(5) Providing relevant project agreements;
(6) Submit a notice of withdrawal;
(7) The statements and guarantees made by the borrower when signing the loan contract are still correct on the date of the borrower's withdrawal, and there are no major adverse changes;
(8) There is no event of default or other events that may constitute a default.
10. representations and warranties
The borrower's legal status, assets and liabilities and business activities are the basic basis for banks to evaluate the security and profitability of loan transactions. Any untrue, inaccurate or incomplete explanation of the borrower's above situation, whether intentional or negligent, will make the bank draw a wrong conclusion and make a loan decision against its true meaning. Therefore, loan contracts usually impose strict representation and guarantee obligations on the borrower, that is, the borrower is required to make representations and guarantees on its legal status, transaction authorization, government approval, litigation status, asset status, financial status, operating status, project contract status, breach of contract and so on. And these statements and guarantees are required not only to be made on the signing date of the loan contract, but also to be made repeatedly on the withdrawal date. Violation of statements and guarantees will be regarded as an event of default, and the bank will further announce the early maturity of the loan and enforce the relevant guarantees.
1 1. Default
Loan default can generally be divided into two categories: one is a violation of the loan contract itself, such as failure to repay the principal and interest at maturity, failure to perform the agreed obligations or incorrect statements and guarantees of facts; The other is the so-called expected breach of contract, that is, judging from the signs of the event, it is only a matter of time before the borrower fails to perform the obligations under the loan contract and will eventually default. A typical example of this kind of event is the insolvency of the borrower.
Anticipated default mainly includes:
(1) cross default
The formation of credit risk is a gradual process from germination, accumulation to occurrence. Before the repayment period expires, the borrower's financial and commercial conditions are likely to undergo major adverse changes, which may affect its performance ability. In addition to general default clauses and guarantee, banks can also stipulate "cross-default clauses" in the contract to ensure the timely repayment of creditor's rights. The basic meaning of cross-default is: if the debtor under this contract defaults in other loan contracts, it is regarded as a breach of this contract. Generally speaking, creditors hold the debtor liable for breach of contract on the grounds that the parties fail to perform their obligations under this contract, but the cross-default clause breaks through this restriction and smacks of "fighting first and then suffering", that is, trying to take relief measures before the repayment crisis of the borrower's debts under other loan contracts, so as to avoid falling into a worse situation than other creditors. Although this form of breach of contract is not clearly stipulated in the current law of our country, it does not violate the relevant jurisprudence and legal spirit of the contract law, and the right of uneasy defense in the current contract law can be used as the legal basis for its application. Therefore, the cross-default clause can be written into the contract as an agreed clause, so that the bank can monitor the credit level of the borrower in a timely and comprehensive manner.
(2) The borrower is insolvent.
If the borrower declares bankruptcy or insolvency through judicial procedures, or admits in writing that he is unable to pay off due debts, or donates property to creditors or puts forward suggestions for donating property, it shall be regarded as an event of default. This is a worrying breach of contract, because when the borrower loses its solvency, if it can't get out of the predicament, it will inevitably violate the provisions of the loan agreement.
(3) Significant adverse changes have taken place in the borrower's situation.
Since the default event clause is used to deal with unforeseen circumstances, since it cannot be predicted in advance from the bank's point of view, it cannot be exhausted. Therefore, from the bank's point of view, such a comprehensive protection clause is needed to protect its interests.
Generally, it is stipulated in the terms of breach of contract that no matter what the reason, whether the borrower is voluntary or involuntary, whether it is caused by the order of the court or the provisions of laws and regulations, it should be regarded as breach of contract. The purpose of this provision is to prevent the borrower from claiming that the breach of contract is caused by force majeure, thus exempting him from the liability for breach of contract.
Matters needing attention in personal loan