《Provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of the case of private lending》It was adopted at the 1655th meeting of the Supreme People's Court of the judicial committee of the Supreme People's court in June 23, 2015. It is hereby promulgated and shall come into effect as of September 1, 2015。
Supreme People's court
August 6, 2015
Method of 18 2015
Provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of the case of private lending
(June 23, 2015 Supreme People's Court of the 1655th meeting of the judicial committee)
In order to correctly try the case of private lending disputes, according to《General rules of the civil law of the people's Republic of China》《The property law of the people's Republic of China》《The guarantee law of the people's Republic of China》《Contract law of the people's Republic of China》《Civil Procedure Law of the people's Republic of China》《Criminal procedure law of the people's Republic of China》And other relevant laws and regulations, combined with trial practice, the development of the provisions of this。
Article 1 The private lending refers to the behavior of natural persons, legal persons, other organizations and their mutual funds。
Financial institutions and their branches, which are approved by the financial regulatory authorities for the establishment of a loan business, shall not apply to the disputes caused by the issuance of loans and other related financial services。
Second Lenders who bring a lawsuit to the people's court shall provide IOU, receipts, IOUS and other debt obligations and other to prove the existence of the legal relationship of credit evidence。
The party holding the IOU, receipts, IOUS and other debt obligation did not specify the creditor, holding debt obligations of the parties mentioned private lending lawsuit, the people's court shall be accepted. The defendant to the plaintiff's creditor qualifications put forward a defense, the people's court after hearing that the plaintiff does not have the qualification of creditors, the court dismissed the prosecution。
Third Both parties to the loan contract to fulfill the contract or the agreement is not clear, after the event did not reach a supplementary agreement, in accordance with the relevant provisions of the contract or transaction habits are still not sure, in order to accept the currency of the place for the contract。
Fourth To ensure that the borrower to provide joint and several liability guarantee, the lender is only charged with the borrower, the people's court can not add to the guarantor of the co defendant; the lender is only the prosecution of the guarantor, the people's court may be an additional borrower for the co defendant。
The people's court shall, in the people's court, the people's court shall provide the borrower for the joint defendant; the people's court may not add the guarantor to the co defendant。
Fifth After the people's court filing, found that private lending behavior itself is suspected of illegal fund-raising crimes, it should be ruled to dismiss the prosecution, and the alleged illegal fund-raising clues or materials transferred to public security or prosecutors。
Where the public security or procuratorial organs shall not file a case, or if the case is filed for investigation, or the procuratorial organ shall make a decision of non prosecution, or if the people's court shall not constitute a crime of illegal financing, the people's court shall accept the case。
Sixth After the people's court filing, and found that the case of private lending disputes are related but not the same facts of the crime of illegal fund-raising and other crimes, the people's court should continue to hear the case of private lending disputes, and will be suspected of illegal fund-raising and other crimes, the material transfer to public security or prosecutors。
Seventh Borrowing the basic facts of the case must be based on the results of the trial of criminal cases, and the criminal case has not been concluded, the people's court should rule to suspend the litigation。
Eighth If the borrower is in the case of a crime or a crime, the lender shall bear the civil liability of the person who is liable for the loan, and the people's court shall accept the case。
Ninth With one of the following circumstances, it may be deemed as the effective element of the contract law for the 210th of the natural persons：
（一）In cash, the borrower receives a loan from the borrower；
（二）In the form of bank transfer, online electronic remittance or through the network of loans and other forms of payment, from the funds to reach the borrower's account；
（三）In the delivery of a negotiable instrument, the borrower shall, in accordance with the law, acquire the right of negotiable instruments；
（四）The lender specific capital account control authorization to the borrower, the borrower has the actual account from the dominant power；
（五）The lender provides the borrower and the borrower in any other way that the borrower has agreed to provide the loan and the actual performance of the loan。
Tenth In addition to the loan contract between natural persons, the parties claim that the people's court shall be effective when the contract is established, and the people's court shall support, unless otherwise agreed by the parties or otherwise stipulated by laws and administrative regulations。
Eleventh Where there are fifty-second private lending contracts signed between legal persons, other organizations, and between them, there are fourteenth provisions of the contract law, and the people's court shall be held in the people's court。
Twelfth Legal persons or other organizations to raise funds through the form of borrowing in the form of a loan to the staff, for the production and operation of the unit, and there is no contract law fifty-second, the provisions of the fourteenth provisions of the situation, the parties claim that the contract is valid, the people's court should support。
Thirteenth The borrower or lender's borrowing and lending practices in connection with the crime, or the decision that has come into effect constitutes a crime, the parties to a civil suit, the private lending contract is not of course invalid. The people's court shall, in accordance with the provisions of article fifty-second of the contract law, the provisions of article fourteenth, identify the validity of the contract of private lending。
The people's court shall, on the basis of the validity of the contract and the guarantee contract, the people's court shall, according to the law of the people's Republic of the people's court shall, in accordance with the law, ensure that the person who is not responsible for the crime shall be deemed to constitute a crime。
Fourteenth In one of the following circumstances, the people's court shall be deemed to be void of the private loan contract：
（一）Taking credit funds of financial institutions and Gregory lending to the borrower, and the borrower must know or should know that；
（二）To to other business lending or employees of the unit to the raising of funds and lending to the borrower for profit and loan personnel to know or should know；
（三）The lender shall know or should know that the borrower's loan is still available for the loan of the illegal and criminal activities；
（四）Against the public order and good customs；
（五）Other violations of the law, the effectiveness of mandatory provisions of the administrative regulations。
Fifteenth The plaintiff to IOU, receipts, IOUS and other debt obligations as basis to initiate proceedings of private lending and the defendant on the basis of legal relationship proposed defense or counterclaim, and provide evidence to prove that the creditor's rights dispute is not caused by private lending behavior, the people's court shall ascertain the facts of the case, to be heard in accordance with the basic legal relationship。
Where the parties agree on a debt and debt agreement reached through conciliation, settlement or liquidation, the preceding paragraph shall not apply。
Sixteenth The plaintiff only on the basis of the IOU, receipts, IOUS and other debt obligations filed a lawsuit of private lending, the defendant's defense has to repay the loan, the defendant shall the claims provide evidence. The defendant provides the corresponding evidence to prove his master Zhang, the Plaintiff still should bear the burden of proof on the establishment of the credit relationship。
The defendant's defense lending behavior has not been actually occurred and can make a reasonable explanation, the people's court should combine the loan amount, payment delivery, the party's economic ability, the local or the parties to the transaction way, trading habits, the parties of property changes and the facts and factors, the comprehensive judgment whether to verify the occurrence of lending。
Seventeenth The plaintiff is only based on the transfer certificate of financial institutions to the private lending litigation, the defendant's defense transfer system to repay the loan or other debt before the two sides, the defendant should provide evidence of its claims. The defendant provides the corresponding evidence to prove his master Zhang, the Plaintiff still should bear the burden of proof on the establishment of the credit relationship。
Eighteenth According to the《About Application〈Civil Procedure Law of the people's Republic of China〉Explanation》Article 174 of the second paragraph of the provisions, bears the burden of prove plaintiff, s liability without justifiable reasons refuses to appear in court, having examined the available evidence cannot confirm that borrowing and lending, loan amount, payment mode of main fact of case, people's court for its opinion that shall not be recognized。
Nineteenth The people's court found the following circumstances when the case of private lending disputes, it should be strictly reviewed the reasons for the occurrence of the loan, time, place, money, delivery way, money flow and the relationship between the two sides, the economic situation and other facts, the comprehensive judgment whether the false civil litigation：
（一）Lenders are clearly not lending capacity；
（二）The facts and reasons why the lender is charged with the prosecution is obviously not in common sense；
（三）The lender can not submit a certificate of credit or the existence of a certificate of credit in the presence of forgery；
（四）Both parties in a certain period of time to participate in private lending litigation；
（五）Where one party or both parties without justifiable reasons refused to appear in the proceedings, the entrusted agent to debit and credit statements of fact is unclear or statements before and after contradiction；
（六）Both parties to the occurrence of the loan fact that there is no dispute or litigation is clearly not consistent with common sense；
（七）The spouse or partner of the borrower or the other creditors of the case are raised with the objection of the facts；
（八）In case of the existence of a low price transfer property in other disputes；
（九）The party is not right to give up the right；
（十）Other circumstances may exist in the case of false private lending litigation。
Twentieth Are ascertained to be false folk loan litigation, the plaintiff applies for withdrawal of the suit, the people's court shall not be permitted, and shall according to the provisions of Article 112 of the civil procedure law, the decision to dismiss the request。
Where the people's court shall, in accordance with the provisions of the Civil Procedure Law of 111st, 112nd and 113rd, shall be transferred to the judicial organ for criminal responsibility for the crime.。
The people's court shall, in the case of a unit, make a fine, and may impose a fine or detention on the main person in charge of the unit or the person who is directly responsible for the crime。
Twenty-first Others in the IOU, receipts, IOUS and other debt obligations or the loan contract signed or sealed, but did not indicate identity or bear the suretyship liability, or through other facts cannot be presumed as guarantor, the lender requests that it assume the guarantee liability for the guarantee, the people's court shall not be supported。
Twenty-second Both parties through the network lending platform to form a lending relationship, the network lending platform provider only provides media services, the parties request the responsibility of the parties, the people's court shall not support。
The provider of network lending platform through the web, advertising or other media expressly or other evidence to prove that it provides a guarantee for the loan, the lender to request the network lending platform provider to assume security responsibility, the people's court should support。
Twenty-third The legal representative or the person in charge of the enterprise shall sign a private loan contract with the name of the enterprise, the lender, the enterprise or its shareholders can prove that the loan term is used by the legal representative or person in charge of the enterprise, and the lender may request the legal representative or the person in charge of the enterprise as a joint defendant or third person。
The legal representative or the person in charge of the enterprise shall sign a private loan contract with the lender in the name of his own name。
Twenty-fourth Parties signed a contract for the sale as a private loan contract of guarantee, after the expiration of the loan borrowers can not repay, lenders to fulfill the request of contract, the people's court shall be heard in accordance with the civil legal relationship lending, and to the interpretation of the parties change litigation request. If the parties refuse to change, the people's court shall dismiss the suit。
In accordance with the legal relationship between private lending after the decision to take effect, the borrower does not fulfill the effective judgment to determine the monetary debt, the lender may apply for auction sale contract subject matter, to repay the debt. It proceeds from the auction price and shall repay the loan principal difference between borrowers or lenders, have the right to claim restitution or compensation。
Twenty-fifth The people's court shall not support the people's court, which has no agreement on the interest, the lender has argued for the interest of the loan。
The people's court shall not support the people's court that the loan interest rate is unknown, the lender claims to pay interest, the people's court shall not support. In addition to the natural person, the loan interest on the loan is not clear, the lender claims interest, the people's court should be combined with the content of private lending contract, and according to the local or the parties of the transaction, trading habits, market interest rates and other factors to determine the interest
Twenty-sixth Both parties to the loan interest rate of not more than 24% of the interest rate, the lender to the borrower to pay interest in accordance with the agreed interest rate, the people's court should be supported。
The two sides of the loan interest rate of over 36%, more than the part of the interest agreement is invalid. The people's court shall support the people's court shall support the interest of the borrower for the return of the lender for over 36% of the annual interest rate。
Twenty-seventh The amount of borrowing IOUs, IOUs, receipts and other debt obligations stated, generally regarded as the principal. The people's court shall, in advance, deduct the interest from the principal。
Twenty-eighth Both lenders and borrowers to pre loan principal and interest settlement will interest credited to the late loan principal and re issued debt obligations, if the previous interest rate does not exceed the annual rate of 24%, re issued debt obligations specified in the amount can be identified for the latter part of the loan principal; over part of the interest can not be into the late loan principal. The agreed interest rate over 24%, the parties claimed that the interest can not be included in the latter part of the loan principal, the people's court should support。
Calculated on the basis of the mentioned in the preceding paragraph, the borrower in the loan period after the expiration of the term of shall pay the principal and interest and can not exceed the original loan principal and on the initial loan principal as the base, calculated at an annual rate of 24% during the entire loan interest and. The people's court shall not support the people's court for the payment of more than part of the loan。
Twenty-ninth Both parties to the loan interest rate at the time of the agreement, from its agreement, but in no more than 24% of the annual interest rate。
The people's court may distinguish between different circumstances if the interest rate is not agreed or the agreement is not clear：
（一）Neither agreed borrowing period interest rates is not agreed by overdue interest, argued that the borrower lending since the late repayment in accordance with the annual interest rate of 6% disbursement of funds interest during the occupation, the people's court shall support；
（二）Agreed on the period of interest rate but did not agree with the interest rate, the lender advocates the borrower from the date of the overdue repayment period in accordance with the interest rate of interest payments during the period, the people's court should support。
Thirtieth The lender and the borrower both agreed to the late interest rate, and the default payment or other expenses, the lender may choose to advocate late interest, breach of contract or other expenses, can also be advocated, but in a total of more than 24% years, the people's court shall not support。
Thirty-first Without the agreement of interest but the borrower voluntarily pay, or more than the agreed interest rate voluntary payment of interest or liquidated damages, and no damage to the interests of the state, the collective and the third, the borrower and the borrower is not required to return the loan, the people's court will not support, but the borrower is required to return the interest rate of 36% parts, except for interest。
Thirty-second The borrower can repay the loan in advance, except otherwise agreed by the parties。
The people's court shall support the people's court shall support the borrower in advance to repay the loan and to claim that the interest is calculated in accordance with the actual borrowing period。
Thirty-third The Supreme People's court was released in August 13, 1991 after the promulgation of the present Provisions《Some opinions on the people's court to try the case of loan》At the same time, the judicial interpretation of the Supreme People's court before the publication of the judicial interpretation and the provisions of this regulation is not applicable。