Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases
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 interest paid in excess of 36% per annum.
At present, there are some differences in understanding whether party and government cadres participate in private lending as a normal investment and financial management behavior or engage in profit-making activities in violation of regulations. Second, the existing laws and regulations are not perfect. Item (5) of Article 77 of China's Disciplinary Regulations (hereinafter referred to as the Regulations) stipulates that those who engage in profit-making activities in violation of relevant regulations shall be given corresponding disciplinary sanctions. This provision emphasizes that for-profit activities must be "in violation of regulations". However, in practice, it is often difficult to find out the direct basis for leading cadres in party member to participate in private lending. The problem of understanding and implementing relevant regulations is how to determine the scope of profit-making activities. Can it be understood that civil servants are not allowed to participate in any profit-making activities, lending activities, investment and wealth management activities, etc. Investment and financial management is the basic method and way for people to gain property appreciation in modern society. The legitimate investment, financial management and private lending of party and government leading cadres should be protected. However, at present, some party and government leading cadres illegally participate in private lending, and some illegally borrow huge amounts of money, which can easily lead to serious violations of discipline and law such as corruption, misappropriation of public funds or bribery. It is necessary to strictly distinguish the nature of relevant behaviors and severely punish those who violate discipline and law. One is to accept bribes in the form of transactions. The Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery stipulates that if a state functionary obtains "income" in the name of entrusted financial management without actually making capital contribution, or the "income" obtained is obviously higher than the income due from capital contribution, it shall be deemed as bribery. Accordingly, leading party and government cadres who make profits for others and lend money to others, whose "income" is obviously higher than their due income, should be regarded as bribery. Second, the source of funds is illegal income. Party and government leading cadres engage in lending activities by using illegal income such as corruption, misappropriation of public funds, bribery and illegal fund-raising. , belongs to the disposal of illegal income, income is fruits, should also be confiscated. At the time of identification, because the money used by the actor for lending belongs to illegal income such as corruption and bribery, it should be identified as corruption and bribery, and its illegal profit-making behavior can no longer be identified separately. The third is to lend money to the management service object with legal property. Party and government leading cadres use legal property to lend money, but the object of lending is their management and service, and those who have a large amount should be punished according to discipline. Some party and government leading cadres use their powers to seek benefits for management clients, and then lend them funds to obtain higher interest (not significantly higher than the due income); Some party and government leading cadres take advantage of their positions to lend money to management service institutions within their jurisdiction. Out of ingratiation and fear, the managed personnel give them higher interest, and it is not excluded that the leading cadres will use their powers to make profits for them in the future. Under these circumstances, the lending behavior of leading cadres is obviously related to their authority, which damages the integrity of their duty behavior and is essentially different from the lending activities between equal civil subjects. Therefore, it should be punished as illegal profit-making activities. The fourth is to lend money to non-management clients with legal property. Party and government leading cadres use their legitimate property to lend money to people who are not within their jurisdiction, nor do they take advantage of the convenience or influence of their positions, so they should make a concrete analysis according to the situation. First of all, if the interest rate is four times higher than the loan interest rate of the same financial institution in the same period announced by the People's Bank of China, it is usury. Seriously disrupting the economic and financial order, it can be handled in accordance with Article 112th of the Regulations. Secondly, the interest rate is not higher than 4 times of the loan interest rate of financial institutions at the same time, which cannot be simply recognized as a legal civil act. In practice, we should also comprehensively consider the scale, frequency, duration and other factors of lending, whether it affects the fair execution of official duties and the social impact caused by party and government leading cadres, and analyze the specific situation. Acts involving a huge amount of loans, a large number of loans, a large number of people, long duration, affecting the fair execution of official duties or causing other serious consequences should be studied as soon as possible and the basis for handling them should be clarified. In addition, for those who lend money to others based on certain popularity, blood relationship and geographical relationship, such as loans between relatives and colleagues, normal interest or symbolic interest is sometimes given. Subjectively, the actor lacks the intention to seek benefits, and objectively, the benefits are not high, so he should not be punished for violating discipline. (Author Li Unit: Case Trial Room of Supervision Department of Central Commission for Discipline Inspection)
How to standardize party member cadres' participation in private lending? Hello, usury is just a kind of private lending, which is only the reason for high interest and compound interest calculation. There are some legal norms, most of which are organized lending. When some old people are unable to repay, they sometimes resort to violent collection, which leads to some social problems.
Individuals do not recommend lending or usury, although financing can be obtained, but it will also make some people suffer.
Under the condition of market economy, party member cadres don't have to participate in private lending, but they should abide by the laws and regulations of the state, and the interest should not be too high, so they can't calculate compound interest, otherwise they may not be partially protected by the state laws. There is also the need to pay attention to the borrower's credit standing and the use of funds to ensure the safety of funds.
How to identify the behavior of Zhang, an industrial and commercial cadre, participating in private lending? According to the characteristics of this behavior can be identified as:
(1) Private lending is a civil legal act. Lenders and borrowers form a specific creditor-debtor relationship by signing a written loan agreement or reaching an oral agreement, thus generating corresponding rights and obligations. The relationship between creditor's rights and debts is an important part of China's civil legal relationship, which is protected by law once it is formed.
(2) Private lending is a contractual act between the lender and the borrower. Whether the borrower and the borrower form a loan relationship, as well as the loan amount, loan object and loan term, depends on the written or oral agreement between the borrower and the borrower. As long as the contents of the agreement are legal, they are allowed and protected by law.
(3) The premise of the establishment of private lending relationship is the actual payment of the loan. Whether the borrower and the borrower form a loan relationship requires the lender to deliver money or other securities to the borrower in addition to the contents and meanings of the loan target, amount and repayment period, before the loan relationship can be formally established.
(4) The subject matter of private lending must be the property owned or controlled by the lender. The loan relationship formed by the property that does not belong to the lender or the lender has no control right is invalid and not protected by law.
(5) Private lending can be paid or unpaid, and whether it is paid or not shall be agreed by both parties. The lender can only ask the borrower to pay interest when repaying the principal if it is agreed in writing or orally in advance.
How to deal with the crisis of private lending? The financing difficulty of small and medium-sized enterprises is not only a problem in China, but also a worldwide problem. Private lending plays an important role in how to better solve the problem of lending and financing for small and medium-sized enterprises, but it also hides some problems. In the face of increasingly prominent contradictions, it has led to one bankruptcy after another, laying a hidden danger for private lending. To solve the financing problem of small and medium-sized enterprises, we must speed up the standardization of private lending and increase the standardization of its business processes, which is very meaningful for controlling risks. Under different circumstances, the problem of private lending has also brought many constraints. Many private lending can not provide a broader service field due to policy restrictions, and they also lack certain preferential policies for private lending, which is not conducive to supervision and is easy to lead to out-of-control risks. With the increasing business risks of small loan companies, it is necessary to relax restrictions appropriately and give preferential tax policies so that small loan companies can better serve small and medium-sized enterprises, especially small and micro enterprises. Then, by setting up a demonstration effect, more small loan companies will be on fire, thus changing the whole situation. There are more supervision and management systems for different preferential policies of private lending, and it is also necessary to speed up the establishment, and at the same time, it is necessary to avoid the lending behavior of stealing the column.
How to deal with the improper behavior of party and government cadres and subordinates? If subordinates don't want to have sex, they can report the party and government cadres. If it is true, the party and government cadres will commit the crime of * * * and revoke all their rights (that is, they will go to jail if they become ordinary people). If subordinates are willing or unwilling to report, they will talk to party and government cadres privately to solve the matter (such as losing money and marrying party and government cadres). )
Participating in private lending will be expelled. 1. Participation in legal private lending should not be the reason for being expelled from the unit. If the unit terminates the labor contract illegally, it may demand compensation;
Second, the legal basis:
1. Article 87 of the Labor Contract Law (revised on 20 12) violates the legal liability for dissolving or terminating the labor contract. If the employing unit dissolves or terminates the labor contract in violation of the provisions of this Law, it shall pay compensation to the laborer at twice the economic compensation standard stipulated in Article 47 of this Law.
2. Labor Contract Law (revised on 20 12) Article 47 Calculation of Economic Compensation The economic compensation shall be paid according to the standard that the laborer pays one month's salary for each full year of working in the unit. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers.
If the monthly salary of a worker is three times higher than the average monthly salary of local workers published by the people of the municipality directly under the central government where the employer is located, the standard for paying economic compensation to the worker is three times the average monthly salary, and the longest period for paying economic compensation to the worker shall not exceed twelve years.
The monthly salary mentioned in this article refers to the average salary of workers in the twelve months before the dissolution or termination of the labor contract.
The case of private lending cannot be mediated. How to deal with it in the end? Collect enough evidence and bring a lawsuit directly to the court. I suggest you entrust a local lawyer, because collecting evidence and lawyer's advice in court can often greatly improve your chances of winning!
It is suggested that how to deal with private lending disputes with IOUs depends on whether there is enough evidence besides specific IOUs. If there is enough evidence, it can be sued in the court where the lender often lives.
How to deal with party member's participation in feudal superstitious activities? 1. party member pays homage to his deceased parents or other relatives in Tomb-Sweeping Day every year, and burns paper money every July and a half. I think this is a folk activity and should not be regarded as a feudal superstitious activity.
2. Every time you enter a temple, you burn incense, worship Buddha and ask God for divination, which is definitely to participate in feudal superstitious activities. However, it is not feudal superstition to visit and watch temples.
12 problem, 20 16 issued the "guidelines for political life within the party", which is characterized as violating the party's political discipline and is also handled according to different degrees.
I'm party member, too. I only go to temples to see Buddhist culture and places of interest. I never kowtow, burn incense or donate money.