When the young man in Yunnan handled the business in the bank, the bank staff made mistakes, which led to such problems, and the bank should bear the corresponding responsibilities.

Second, the case of seeking the bank to lose the case

Case analysis of a bank's losing case by borrowing new and returning old working capital loan;

I. Basic information

1August 6, 1997, Jin applied for a loan of 654.38 million yuan from Bank B, and the maturity date of the loan was1August 5, 1998. Due to the problems of Company A, the repayment cannot be made on time. 1On July 24th, 998, Company A proposed to Bank B to borrow the new and return the old to extend the repayment period. In order to reduce the loan risk, Bank B agreed to borrow the new loan and repay the old one, and asked Company A to provide guarantee for the new loan. 1On July 28th, 998, Company A requested Company C to provide a guarantee with a blank working capital loan contract and a letter of intent for guarantee, and Company C agreed to provide a guarantee for it, and stamped the official seal of Company C and the seal of its legal representative on the blank loan contract. 1On August 4th, 998, Bank B and Bank A agreed that Company A would borrow 654.38 million yuan from Bank B to repay the old with the new. The loan term is 6. When the borrower fails to perform the contract, he shall be jointly and severally liable for repaying the principal and interest of the loan, and deduct the loan from the deposit account of the loan to repay the old loan owed to Bank B in advance. After the loan expires, Company A fails to repay the loan as scheduled. 1March, 1999 15, Bank B directly deducted100000 yuan from Company C's account without knowing that the loan purpose of the loan contract was to borrow the new and return the old, and the guarantee contract should be invalid; At the same time, Bank B, without its consent, deducted the deposit in its account, infringing the ownership of the depositor, and requested to declare the guarantee contract invalid and make compensation. After trial, it is believed that Bank B and Company A colluded maliciously to repay the old loan with the new loan, and the loan contract signed damaged the responsibility of the voucher. Bank B directly deducts the deposits deducted by Company C to compensate the corresponding interest losses.

Second, the case analysis

This case belongs to the guarantee contract of "borrowing the new and returning the old" loan contract. Company C has two lawsuits, one is to claim that the guarantee behavior of Company C is invalid; Second, Bank B directly deducted deposits from Company C, which constituted infringement.

(1) Whether the guarantee behavior of Company C is effective.

The main basis of the Guarantee Law is to see whether the signing of the guarantee contract between the bank and the borrower constitutes the real purpose of borrowing the new from the guarantor and whether the guarantor provides the guarantee by deception. If the guarantor knows or should know the main contract, that is, by borrowing the new and returning the old, the bank and the borrower do not constitute the guarantee liability; If the guarantor does not know that the real purpose of the loan contract is that the loan contract is invalid when signing the contract, the guarantor shall not bear the guarantee responsibility.

When determining the legal effect of the "loan-for-loan" guarantee contract, we generally first look at whether the guarantor of the old loan and the guarantor of the new loan are the same person, or whether the old loan has no guarantor and the new loan provides a guarantor. If the borrower and the borrower are the same person, even if the bank and the borrower borrow the new and return the old, the guarantor still has to bear the guarantee responsibility. Because the debtor repays the old loan with the new loan, the guarantor's guarantee responsibility for the old loan is immediately exempted, and the risks and responsibilities assumed by the guarantor are only for the new loan. Therefore, compared with the debtor using the new loan according to the actual use of the loan, when the debtor borrows the new loan to repay the old loan, the guarantor bears less risks and responsibilities. For example, the debtor uses the new loan according to the actual purpose of the loan, instead of borrowing the new loan to repay the old loan. If the funds cannot be recovered, the old debts are outstanding, and new debts are to be issued, then the guarantor will assume the guarantee responsibility for the old debts and new loans. Therefore, if the borrower changes the purpose of the loan and borrows the new loan to repay the old one, it will have little adverse impact on the guarantor, but only need to bear the guarantee responsibility for the latter loan. Therefore, when the old loan guarantor and the new loan guarantor are the same person, regardless of whether they know that the purpose of the new loan contract is to borrow the new loan to repay the old loan, each guarantor should bear the guarantee responsibility for the latter loan. In this regard, China's guarantee law has clear provisions. Article 30 of China's Guarantee Law (1) stipulates that during the guarantee period, the creditor and the debtor changed the main contract in terms of quantity, price, currency and interest rate. If the debtor's debt is reduced without the consent of the guarantor, the guarantor shall still be liable for the changed contract; Where the debtor's debt is aggravated, the guarantor shall not be liable for the aggravated part.

If there is no guarantor for the old loan or the guarantor for the old loan and the new loan is not the same person, and the guarantor for the new loan does not know that both parties to the loan contract are repaying the old loan by borrowing the new loan, the guarantor shall be exempted from the guarantee responsibility according to the provisions on fraud in Article 30, paragraph 1 of the Guarantee Law. Because in this case, not only is the creditor (bank) colluding with the debtor (borrower) and actually changing the loan purpose of the main contract without the consent of the guarantor, but the guarantor may also bear the guarantee of non-performing loans or even dormant account. It is obviously unfair to the guarantor to let the guarantor issue a guarantee for the loan that could not be recovered originally, which violates the principle of fairness in civil law; If the loan swap master contract states that the loan is swapped for the old one or repaid by loan, or if financial institutions such as banks and borrowers can provide evidence to prove that the guarantor still provides a guarantee knowing the fact of swapping the old one for the new one, the guarantor still bears the guarantee responsibility.

According to Clause 1 of Article 39 of the Contract Law, if the parties to the main contract agree to repay the old loan with the new loan, the guarantor will not bear civil liability unless he knows or should know. Generally speaking, the guarantor shall conclude a guarantee contract with the creditor to ensure the debtor's performance under the condition of comprehensively measuring the debtor's performance ability and the contents of the main contract. In this case, Company C is not the guarantor of the old loan. When Company A asked Company C to provide a guarantee, it only showed a blank working capital loan contract, which did not explain that the purpose of the loan was to borrow the new and repay the old, while Bank B, as the lender, failed to fulfill its obligation of informing, that is, Company C, as the guarantor, did not know that the purpose of the loan contract it guaranteed was to repay the old with the new. Therefore, according to the above discussion, the guarantee behavior of Company C should be deemed invalid, and the lender Bank B has the fault of inaction, and Company C will not assume the guarantee responsibility for the breach of contract of Company A. ..

(2) Does the bank directly deduct the deposit of Company C constitute infringement?

Although the bank's deposit deduction behavior is based on the loan contract, because the guarantee contract is invalid, the guarantor does not have to bear the joint repayment responsibility of borrower A to creditor B bank. Therefore, in this case, although Company C, as the guarantor, stamped the official seal of Company C and the seal of the legal representative on the guarantor position and letter of intent of the blank loan contract, "when the borrower fails to perform the contract, the guarantor shall be jointly and severally liable for repayment, and the lender may deduct the loan principal and interest from the guarantor's deposit account." This clause is not an agreement between Company C and Bank B, and Company C doesn't know the content of this clause at all. It's just the agreement in the loan contract between lender B Bank and company A, which is an act of illegally disposing of the legal rights of company C. This clause should be invalid and cannot bind company C. Therefore, lender B Bank directly deducts the funds in the guarantor's deposit account to repay the loan principal and interest of company A, which constitutes infringement and should bear the responsibility of returning property and compensating losses.

Three. Relevant suggestions

(a) truthfully fill in the real purpose of borrowing new loans to repay old loans

In the process of borrowing the new and returning the old, in addition to not inventing the purpose of the loan, it is also necessary to make it clear to the guarantor to avoid the guarantor asking for exemption on the grounds that "the two sides colluded maliciously and constituted fraud". It is suggested that the "loan purpose" column in the loan application, loan contract and guarantee contract should directly indicate that "this loan is used to repay the loan principal owed by the borrower to the lender under the contract number", so as to ensure the legality and effectiveness of repayment.

(2) Don't be lazy for the purpose of borrowing the new and returning the old.

In view of the fact that the current legislation involves little about replacing the old with the new, and there are different judgments in different places, in order to avoid the risk of judicial judgment and prevent the guarantor from being exempted from the guarantee responsibility in judicial practice, banks should standardize the loan operation and pay attention to the preservation of evidence. Banks and borrowers borrow new loans to repay old ones. In the case that both old and new loans have guarantors, whether the guarantors are the same person or different people, it is necessary to specify whether "borrowing new loans to repay old ones" or "repaying loans with loans" in the purpose of the loan contract, or let the guarantors know whether the loans made by banks and borrowers are borrowed new ones to repay old ones when signing the contract.

(3) Implement safeguard measures

Due to the particularity of borrowing the new and returning the old, the guarantee of the loan must ensure its effectiveness. If the original loan is a secured loan, you need to go through the guarantee procedures again. The risk of the new guarantee method cannot be higher than that of the original guarantee method. If the original loan is not guaranteed, it is necessary to issue a new guarantee to ensure that the guarantee is fully effective.

(4) Carefully deduct the guarantor's deposit account.

In the bank loan business, in order to recover the loan safely and quickly, the bank usually directly deducts the loan principal and interest from the debtor's deposit account, but the bank must pay attention to the legality and evidence when directly deducting. It is suggested that the bank must reach a deduction agreement with the debtor before directly deducting the loan principal and interest, and keep written evidence, such as the authorization letter for entrusted transfer payment or the deduction agreement.

3. Why do individuals and banks lose?

There is not enough evidence to show that the bank is at fault.

Fourth, seek the case that the bank lost the case.

Hehe, there are more cases in which banks lose cases, and the case books in bookstores are ten cents a dozen.