It's possible.
Legal consequences and risk warning of false loan use
I. Case review
2065438+In February 2005, Wang applied for a loan from a commercial bank, but it was not approved due to insufficient secured assets. Wang found his distant relative Xie, and after consultation, he took him to a commercial bank to apply for a loan. Xie mortgaged his own property and applied for a loan from the bank in his own name. After the loan came down, he immediately transferred to Wang's account.
2065438+February 2006, the loan contract expired, and Xie was unable to repay it, and the case entered the proceedings. During the trial, Xie said that the account manager of the bank colluded with Wang to trick him into lending money in his own name and using the property as collateral. Xie provided an evidence named "General Supply Contract", suggesting that the contract was jointly fabricated by the account manager and Wang, but the fake contract he signed with Wang did not actually happen. Therefore, he argued that the loan contract was invalid.
Second, the trial practice
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The untrue purpose of the loan does not affect the validity of the loan contract.
According to the relevant provisions of the Contract Law, legal subjects can form an effective contract if they reach an agreement on legal matters based on their true meaning. In this case, the purpose of the loan is not the main clause of the contract, which does not affect the legal effect of the main elements of the contract. In general loan cases, borrowers apply for loans from banks based on their true wishes to form invitations, and banks agree to grant loans to them after examination to form commitments. The two parties sign a contract to determine the corresponding amount and interest, and the contract will take effect immediately when lending money. In the practice of civil trial, the parties claim that the loan contract is invalid because of the untrue use of the loan, and their attempts to evade the debt are often not supported.
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Fictitious loan purpose, loan contract is invalid, guarantee contract is invalid.
Fraudulent use of loans to defraud loans, or obtaining loans by deception, may constitute the crime of fraudulent loans or loan crimes.
The constitutive standards of the crime of defrauding loans are: (1) obtaining loans of more than one million yuan by deception; (two) defrauding loans, causing direct economic losses of more than 200 thousand yuan to banks or other financial institutions; (three) although not up to the above amount standard, but repeatedly defrauded the loan; (4) Other cases that have caused heavy losses to banks or other financial institutions or have other serious circumstances. The crime of loan, more than 20 thousand yuan can be filed for prosecution. If the lender provides a false contract, fabricates a project or provides a false certificate of use, which constitutes a crime, in the civil trial, the loan contract will often be deemed invalid on the grounds of "covering up the illegal purpose in a legal form" according to the third paragraph of Article 52 of the Contract Law, and the corresponding collateral and guarantee contract will also be deemed invalid.
Third, risk assessment.
Risk 1: Fictitious loan purpose, and the loan contract is invalid.
Based on the above-mentioned trial practice, if only fictitious contracts are put forward in civil trials, loan contracts will only become revocable contracts because of fraud, and banks usually choose to ratify contracts for their own interests. Therefore, some guarantors often choose to report the lender to the public security organs to avoid the guarantee responsibility. After the criminal case is filed, the civil case will be suspended or not accepted. The case of Zhejiang Provincial High Court (20 13) Zhemin ShenziNo. 1287 is a typical case. After Jinhua Bank Hangzhou Branch's claim for repayment of the loan was rejected, it filed a retrial application with the Zhejiang Provincial High Court, saying: "The lender is not involved in the crime of defrauding the loan. The guarantor is suspected of evading the guarantee responsibility by reporting the criminal behavior of the lender to defraud the loan. Even if the case is suspected, the trial should be suspended. The guarantor intervened in the civil trial of financial creditor's rights through criminal means, which seriously damaged the security of financial creditor's rights. " On the other hand, the Higher People's Court rejected his application for retrial on the grounds that "cases accepted by the people should be excluded if they are suspected after being tried as economic cases".
Once the lender is investigated for criminal responsibility, the loan will become a criminal case, and the lender will eventually be directly sentenced to repay the loan principal, and the bank has no right to file a civil lawsuit. The interest agreement and guarantee measures in the original loan contract are invalid, and the corresponding guarantor and collateral will also lose their original effectiveness. At this time, the lender is restricted from personal freedom, fined for criminal offences, and almost loses the repayment ability, and the bank will suffer heavy losses. In addition, if there is evidence that the bank staff colluded with the lender maliciously, fabricated a loan contract and defrauded the loan, the bank staff will also be sentenced for the crime of * * *.
Of course, not all fictitious loan purposes may constitute a criminal offence. The Summary of the National Symposium on the Trial of Financial Crime Cases provides guidance for this. "If there is evidence that the perpetrator has no purpose of illegal possession, financial punishment cannot be imposed just because the property cannot be returned. It is required to strictly distinguish between loans and non-loans. " But in any case, this is the focus of attention in criminal trial practice. For banks, even if the lender is not convicted of a criminal offence, the repayment of the loan may be suspended or delayed due to the criminal filing, and even the credit crisis of the lender will eventually lead to a greater debt crisis.
Risk 2: improper use of loans breeds non-performing loans.
In fact, the purpose of the loan itself is not important in the credit process, and the essence behind it is the soul of a loan. For example, when corporate customers apply for loans, bank staff need to go to the field to inspect the capital flow and shortage of enterprises, and then judge the use of funds, repayment sources, realizable value and so on. Finally, it is determined that the use is true and the repayment ability is available before lending. At this time, the purpose and destination of enterprise funds determine whether it can realize the function of "Qian Shengqian", and finally ensure the repayment of loan principal and interest with the value-added part. Therefore, the purpose of the loan largely determines the risk of the loan. If the actual users use the loans for other purposes, invest in areas that do not meet the market demand, such as the stock market and futures market, or make low-interest and high-interest loans, or invest in non-profit industries or even illegal industries, it is very likely that non-performing loans will be formed and it will be difficult to recover.
Risk 3: misappropriate loans and disrupt financial order.
Lenders fabricate the purpose of loans and change the purpose of loans without authorization, which circumvents the national monetary and credit policies to a certain extent and is not conducive to the implementation of national macro-control. At the same time, misappropriation of loans will generate a certain cash flow, which may lead to the overflow of funds in individual industries or asset fields, affect market prices, promote asset bubbles, and ultimately cause incalculable consequences. The subprime mortgage crisis in the United States is a warning. The lax examination of the authenticity of loans and the prevalence of misappropriation of loans led to a continuous decline in the price of the real estate market and a sharp decline in the domestic securities market, which eventually formed a double bubble and a new market. Therefore, from a macro point of view, misappropriation or fictitious loan use will affect the overall economic development and social security capacity, which cannot be underestimated.
Risk 4: Concealing the purpose of the loan and the guarantee is invalid.
Supreme People's "About Application"
Shanghai International Trust and Investment Co., Ltd. has successively signed several loan contracts with the borrower Shanghai Comprehensive Information Exchange, but failed to inform the guarantor Shanghai Sanhe Real Estate Company of the actual use of the loan. When the loan was not paid off, the guarantor was sued. The guarantor shall bear the responsibility for the judgment of the first instance. The second instance ruled that Shanghai International Trust and Investment Co., Ltd. and Shanghai Comprehensive Information Exchange * * concealed the real situation of "borrowing the new and returning the old" and defrauded the guarantee. The guarantor shall not bear the guarantee liability according to law. Fortunately, the retrial and the retrial of the Supreme Court held that both borrowers borrowed money from abroad and guaranteed each other, and then determined that Sanhe Company "should know" that the purpose of borrowing money under the contract was to repay old loans with new loans. Apply the above provisions and maintain the judgment that the guarantor is liable. After nine years of trial (1999-2008), the case was finally concluded on the grounds of "should know", which shows the importance and key of banks or other lending institutions informing and expressing the guarantor's loan purpose.
Banks should strictly abide by the principle of loan authenticity and clearly explain the actual use of loans to interested parties when handling the business of "repaying loans with loans" or "repaying old loans with new ones", otherwise they will face risks such as invalid guarantees.
Fourth, risk prevention suggestions
Judging from the above risks, it is not necessary for banks to examine the real purpose of loans. However, in the practice of credit, it is really very difficult to examine and monitor the purpose of loans, and we can only take precautions from multiple angles before and after lending to minimize risks.
(A) to strengthen the authenticity review before lending
Banks should pay more attention to the authenticity of loan purposes, and account managers should be sensitive to the reasons why lenders apply for loans. For personal loan business, it is necessary to know the applicant's family composition, work unit, social relations, personality characteristics, hobbies and other information to judge the real use of the loan. When lenders are found to have inexplicable reasons to lend, they should be vigilant and control the loan risk. For corporate borrowers, it is relatively difficult to judge the purpose of loans. The account manager can judge the actual economic situation and regular transaction objects of the enterprise through the cash flow, financial statements and orders of the enterprise, and must visit and inspect the loan purpose with the project requirements. When necessary, you can check with your regular trading partners or neighboring and related enterprises.
(2) Due diligence supervision of post-loan use
Post-lending supervision is more difficult and less operable than pre-lending review, which requires greater efforts from banks and regulatory authorities. Under normal circumstances, the account manager will conduct monthly or quarterly routine checks on the loan purpose and other conditions of the loan users according to the regulations, but it is often a formality or simply replaced by supplementary accounts afterwards. Therefore, we must re-emphasize the implementation of post-loan supervision. In addition, in order to ensure the real use of bank loan funds, banks usually require lenders to issue corresponding purchase and sale contracts and other trading contracts, and on this basis, they will directly issue loans to counterparties by means of entrusted payment. This practice seems to exempt the bank staff from the crime of lax examination of loan purposes, but it virtually urges lenders to forge contracts and then embark on the road of defrauding loans, and banks will also suffer. Therefore, the author believes that entrusted payment cannot be absolute, and the lender should be guided to fill in the purpose of borrowing as realistically as possible and provide other corresponding evidence materials to replace the "false transaction contract". In addition, if the loan is entrusted payment, the link of authenticity check with the payee should be added. When it is found that the payee of a large loan is not the regular transaction object of the lender, it is necessary to be vigilant, suspend payment and conduct in-depth investigation.
(three) truthfully inform the purpose of the loan
Guarantors, mortgagors, pledgees and other people who provide guarantees for loans are collectively referred to as guarantors. After the lender is unable to pay off the debt and enters the litigation procedure, the guarantor and the borrower have the same status and naturally become debtors. In order to avoid paying debts for others, especially for large loans, many guarantors reported the case to the public security organs on the grounds that lenders defrauded loans, which also caused some of the above major risks.
Therefore, banks should make full use of the role of guarantors, communicate with them well before granting loans, and make investigation records to understand or clearly inform the real purpose of loans. Don't make false records. When the loan is not good, the bank can prevent the guarantor from reporting the case and protect its own rights and interests on the grounds that the guarantor knowingly or maliciously colludes with the lender to defraud the loan. When handling the loan of "borrowing the new and returning the old", it is necessary to fulfill the obligation of informing in particular and clarify the purpose of the loan to the guarantor. For the same guarantor, it should also be required to re-sign the relevant letter of guarantee or guarantee contract, make corresponding records and respect the legitimate rights and interests of the guarantor.
Second, the IOU does not prove the authenticity of the IOU. Can it be judged that the IOU is false?
The purpose of the loan strictly requires the authenticity of the loan purpose. If the bank finds that the actual purpose of the loan is inconsistent with the application purpose in the later inspection, it can be considered as misappropriation of loan funds. The bank will recover the loan in advance, and will also demand payment of liquidated damages.
legal ground
Article 35 of the Commercial Bank Law stipulates that commercial banks should strictly examine the borrower's borrowing purpose, repayment ability and repayment method when issuing loans. Commercial bank loans shall be subject to the system of separating loan review from grading approval.
Article 37 of the Commercial Bank Law stipulates that a commercial bank shall conclude a written contract with the borrower when issuing loans. The contract shall stipulate the type, purpose, amount, interest rate, repayment period, repayment method, liability for breach of contract and other matters that both parties think need to be agreed.
3. Will fictitious borrowing be sentenced to criminal responsibility?
Specific analysis of specific problems.
Generally speaking, if you only have the will and ability to repay the loan contract, some loan methods are still suggestions provided by financial institutions, and the purpose of the loan is not true. Therefore, the essence of a loan contract is borrowing and lending, which has nothing to do with collection and repayment. At most, it is liable for breach of contract according to the contract, which belongs to the category of civil liability; The other is that the amount is extremely huge, at the same time, there is no repayment ability and repayment guarantee is insufficient, so the purpose of borrowing is fictitious and even false proof materials are provided. Once a crime, contract or finance is investigated,
4. Will fictitious borrowing be sentenced to criminal responsibility?
Here are a few questions you need to elaborate on: What does "unit expenditure" mean? Can the unit repay the loan?
In the case you mentioned, there may be two charges: the crime of lending and the crime of defrauding loans. For the former, the requirement is "for the purpose of illegal possession". If this enterprise is used for the daily operation of the enterprise after the loan, it is difficult to constitute a crime; For the latter, it is required to cause great losses to the bank or have other serious circumstances. If the enterprise has the ability to repay or provide sufficient guarantee, it is difficult to constitute a crime.
On the whole, it is unlikely to constitute a loan crime. If the enterprise cannot return it, it may be suspected of defrauding the loan.
In addition, if the fraudulent loan behavior is approved by the person in charge of the enterprise and represents the enterprise behavior, it should be a unit crime, and the legal representative or the person directly responsible should also bear criminal responsibility.
Hope to adopt, thank you!