Due to some uncertain factors, loan contract disputes occur from time to time. Here, I will explain the relevant knowledge to you with a case of invalid loan contract guarantee dispute. Welcome to reading.
Case analysis of guarantee dispute of invalid loan contract
1 On February 26th, 992, Shennan Company and ICBC signed a loan contract of1. According to the contract, ICBC lent Shennan Company US$ 6.5438+RMB 8,000, and the loan period was 654.38+ the first payment date1February 28, 1992 to August 28 of the same year. Pay off all loan principal and interest within 6 months; Shennan Company must repay USD 6,543,800+on June 28th of the same year and USD 800,000 on August 28th of the same year, and the loan interest rate is 49.375% per annum. Borrowing purposes, importing ABS plastics; If the loan is misappropriated, a penalty of 50% will be added on the basis of the original loan interest rate; If the borrower fails to repay the loan on time, the lender has the right to deduct it from the borrower's other accounts and charge 20% interest on the overdue part from the overdue date. The Municipal Foreign Economic Commission provides guarantee for this loan contract. After the contract was signed, ICBC lent Shennan Company $6,543.8+800,000 yuan as agreed. After the loan expired, Shennan Company failed to repay it. On July 2 1992 and September 2 1 of the same year, ICBC deducted $484,368,900 from the account of Shennan Company as part of the interest paid by Shennan Company. On May 13 of the same year, Shennan Company borrowed another 220,000 yuan from Industrial and Commercial Bank of China with a term of six months and an annual interest rate of 7.74%, which was repaid on 10/0/2. The Municipal Foreign Economic Commission provides guarantee for this loan contract. After the contract was signed, ICBC lent Shennan Company RMB 2.2 million as agreed. If Shennan Company fails to repay the loan within the time limit stipulated in the contract, ICBC agrees to postpone the repayment for 6 months to May 1993+02. After the maturity, Shennan Company repaid RMB 600,000.00 Yuan and the loan bank interest of 1.994 in the third quarter of the same period, and still owed RMB1.60,000 Yuan. In order to recover the loan, ICBC filed a lawsuit with the court on August 28th. 1994. The petition ordered Shennan Company and the Municipal Foreign Economic Commission to immediately repay the loans of US$ 6,543.8+RMB 8,000 and RMB 6,543.8+RMB 6,000, and bear the responsibility of paying interest and overdue repayment.
The actual user of the loan of $6,543,800+0.8 million from ICBC by Shennan Company is Hong Kong Yonglining International Development Co., Ltd. (hereinafter referred to as Yonglining Company). In the process of borrowing money, Yonglining Company issued a power of attorney to Shennan Company, entrusting Shennan Company to borrow 6.5438 USD +0.8 million yuan from ICBC on its behalf. However, Shennan Company did not show the power of attorney to ICBC, and ICBC did not receive any formalities from Li Ning Company.
Introduction of related knowledge
1, loan contract
A loan contract refers to a contract in which the parties agree that one party will transfer the ownership of a certain kind and quantity of currency to the other party, and the other party will return the similar kind and quantity of currency within a certain period of time. Among them, the party providing the money is called the lender, and the party receiving the money is called the borrower.
Characteristics of loan contract
(1), the subject matter of the loan contract is money. The subject matter of a loan contract is a special currency. Therefore, in principle, only performance delay occurs, and no performance failure occurs.
(2) A loan contract is a contract to transfer the ownership of money. When the lender gives money to the borrower, the ownership of the money is transferred to the borrower, and the borrower can dispose of the money. This is determined by the purpose of the loan contract, and it is also the inevitable result of the special kind of money as its subject matter.
(3) Loan contracts are generally paid contracts (interest-bearing loans) or free contracts (interest-free loans).
(4) The loan contract is generally an important contract and should be in written form. The form of a loan contract between natural persons may be agreed upon by the parties.
2. Liability for breach of contract
Borrower's liability for breach of contract:
(1) If the borrower fails to use the loan according to the purpose stipulated in the contract, the lender has the right to recover part or all of the loan, and charge a penalty interest at the interest rate stipulated by the bank. If the circumstances are serious, the bank may stop issuing new loans within a certain period of time.
(2) If the borrower fails to repay the loan within the time limit, the lender has the right to recover the loan and collect the penalty interest according to the regulations of the bank. If the borrower repays the loan in advance, interest will be charged (deducted) according to the regulations.
(3) If the borrower uses the loan to cause losses and waste or uses the loan contract to engage in illegal activities, the lender shall recover the principal and interest of the loan, and the relevant units shall investigate the administrative and economic responsibilities of the person directly responsible. If the circumstances are serious, criminal responsibility shall be investigated by judicial organs.
Lender's liability for breach of contract:
(1) If the lender fails to provide the loan on schedule, it shall pay the borrower the liquidated damages according to the default amount and the number of days of delay, and the calculation of the liquidated damages amount is the same as the calculation of the borrower's penalty interest.
(two) the staff of banks and credit cooperatives shall be investigated for administrative and economic responsibility for the loss and waste of loans or illegal activities by using loan contracts due to dereliction of duty. If the circumstances are serious, criminal responsibility shall be investigated by judicial organs.
Article 9 Ways to resolve contract disputes: Any dispute arising during the execution of this contract shall be settled by both parties through consultation. If negotiation fails, both parties agree to arbitrate by the Arbitration Commission or bring a lawsuit to the people's court.
3. Loan contract guarantee
The so-called loan contract guarantee means that when the lender issues a loan to the borrower, the borrower needs to provide something or someone as the loan guarantee. When the borrower fails to perform the contractual obligations, the guarantor of the loan must pay off the debt on his behalf, otherwise the lender will give priority to repaying the collateral provided by the lender or the third party. A few years ago, because of many domestic bank loans, there were often cases of non-repayment. Banks and other financial institutions are increasingly using secured loans. After the state-owned banks are changed into commercial banks, all loans will be guaranteed. Article 7 of the Law of Commercial Banks clearly stipulates that when handling loan business, commercial banks should strictly examine the credit standing of borrowers and implement guarantees to ensure the timely recovery of loans. ? Article 36 further stipulates that when a commercial bank issues a loan, it must require the borrower to provide a guarantee, and it should strictly examine the repayment ability of the guarantor, the ownership and value of the collateral and pledge, and the possibility of realizing the collateral and pledge. ? The guarantee of loan contract can ensure the smooth realization of creditor's rights, and for the debtor, it is to urge him to fulfill his debts consciously and in time.
Legal provisions of loan guarantee
Article 198 of the Contract Law of People's Republic of China (PRC) stipulates that when concluding a loan contract, the lender may require the borrower to provide a guarantee. The guarantee shall comply with the provisions of the Guarantee Law of People's Republic of China (PRC).
Guarantee is an important civil legal system with the development of commodity economy. 1986 the general principles of China civil law stipulate the principle of guarantee. 1995 "guarantee law" is formulated on the basis of summarizing the practical experience of China's guarantee system and drawing lessons from foreign common practices. According to the provisions of the Guarantee Law of People's Republic of China (PRC), the lender may require the borrower to adopt the following guarantee methods in the loan contract:
1. Guarantee. Guarantee refers to the agreement between the guarantor and the lender, that is, when the borrower fails to perform the debt, the guarantor will perform the debt according to the agreement and bear the responsibility. There are two main ways to guarantee. One is joint and several liability guarantee, that is, the lender and the guarantor agree that if the borrower fails to perform the debt at the expiration of the loan period, the lender may require the borrower to perform the debt, or the guarantor may be required to assume the guarantee responsibility within the scope of its guarantee. The second is the general guarantee, that is, the lender and the guarantor agree that when the borrower fails to perform the debt after trial or arbitration and the borrower's property is enforced, the guarantor shall bear the guarantee responsibility.
2. Mortgage loan. It means that the borrower or the third party does not transfer the possession of the property stipulated by law and takes the property as the guarantee of the creditor's right. When the borrower fails to perform the debt, the lender has the right to discount according to law or give priority to compensation with the price of auction or sale of property. The scope of collateral shall be legally transferable property, and the mortgage contract shall be registered, and the mortgage contract shall take effect from the date of registration.
3. Take an oath. Including chattel pledge and right pledge. Chattel pledge means that the borrower or the third party transfers his chattel to the lender for possession and takes the property as the guarantee of creditor's rights. When the borrower fails to perform the debt, the lender has the right to discount the movable property or give priority to compensation with the price of auction or sale. The pledge of rights refers to the transfer of property rights other than ownership as the guarantee method of pledge. The following rights can be pledged: bills of exchange, checks, promissory notes, bonds, certificates of deposit, warehouse receipts and bills of lading; Shares and stocks that can be transferred according to law; Rights such as trademark exclusive right, patent right and property right in copyright that can be transferred according to law.
After the lender pays the loan to the borrower, the risk shall be borne by the lender. In order to ensure the realization of creditor's rights and reduce the risk of borrowing, in recent years, China's financial institutions have increasingly adopted the method of guarantee in their credit business. According to the relevant provisions of the Commercial Bank Law. When a commercial bank lends money, the borrower shall provide a guarantee. Commercial banks should conduct a comprehensive review of the repayment ability of the guarantor to determine whether the guarantor has really provided the guarantee; Identify and verify the ownership and value of collateral, find out its property right certificate, and strictly examine the possibility of collateral realization. Only after examination and evaluation by commercial banks, it is confirmed that the borrower has good credit standing and can repay the loan, can guarantee be provided. Therefore, when a financial institution borrows money, the parties concerned shall determine the guarantee method in accordance with the relevant provisions. Where a loan is made between natural persons, the parties may make an agreement on the guarantee according to the actual situation.
4, the statute of limitations of the loan contract
(1), the limitation of action starts from the first time you claim the creditor's right, but it cannot exceed 20 years from the date of borrowing. Of course, it can be argued, but the debtor can refuse to perform the debt on the grounds that it has exceeded the maximum protection period, which has no practical significance.
(2) When it comes to the issue of proof, since this loan contract is an ordinary creditor-debtor relationship, the normal burden of proof system applies, that is, whoever advocates gives evidence. If you want to prove that you are constantly claiming creditor's rights, you can only prove that the debtor has no obligation to prove it;
In practice, the simplest and most effective way to leave a certificate is to ask the other party to leave written evidence if the other party promises the repayment period every time when claiming the creditor's rights. This is also reasonable ~ ~ If the other party refuses to fulfill the repayment obligation, you can take legal action accordingly.
(3) Within two years from the date of acceptance, you can claim the creditor's rights again, so as to interrupt the limitation of action. Similarly, it cannot exceed the 20-year limit.
(4) As for the loan interest rate, as long as you choose between the upper and lower limits of the loan interest rate stipulated by the state, the law will support that some laws beyond the limit will not be protected, but the debtor is willing to perform the compulsory intervention of the court.
The General Principles of the Civil Law stipulates the limitation of action for loan disputes for two years, but the two years mentioned here are not simply calculated from the date of borrowing, but from the date when you know or should know that your rights have been infringed. Article 141 of the general principles of the civil law stipulates that if the limitation of action is interrupted by bringing a lawsuit, and one of the parties requests or agrees to perform the obligation, the limitation of action shall be recalculated from the time of interruption? . Whether the limitation of action has passed depends on the specific circumstances.
5. Introduce the proof of loan dispute.
After a dispute over private lending, we should first confirm whether the lending relationship is established and whether the lending contract is valid. If there is no written contract, when the parties dispute whether there is a loan relationship, the party who advocates the existence of a loan relationship shall bear the burden of proof. If it can prove the existence of the loan relationship, it shall be tried in accordance with the private loan case.
In trial practice, it is rare for borrowers and borrowers to conclude loan contracts in the form of contracts, and IOUs are the most common litigation evidence in private lending cases. An IOU is actually an agreement. It can not only prove the true situation of the case, but also reflect the existence of the relationship between creditor's rights and debts. Of course, it also involves the principle of examination and identification of key evidence of IOUs. As long as it can prove the true situation of the case and reflect the existence of the relationship between creditor's rights and debts, some IOUs are incomplete, but the borrower and the amount are clear, and the basic facts can prove to be litigation evidence.
If the lender can provide the borrower's handwritten IOUs to prove the existence of the creditor-debtor relationship, then this is strong evidence. If there is no receipt or loan contract between the two parties, the plaintiff only brings a lawsuit to the court on the grounds of oral loan relationship. In other words, the plaintiff provided an iou or loan contract, which indicated in black and white that there was a creditor-debtor relationship, but the other party provided the corresponding evidence of anti-differentiation, which made the case complicated and it was difficult to identify the loan relationship. The court should pay attention to the proof standard of litigation evidence in the trial. For example, if a loan agreement is reached orally between the parties, it should be comprehensively determined by combining the statements of the parties and other relevant evidence. If there is other relevant evidence to confirm the plaintiff's statement, the lender's statement and relevant evidence can be identified. However, if the borrower denies the lender's statement, it cannot support its claim. In this regard, the key is to carefully examine the probative effect of the evidence provided by the parties, not only to fully examine the documentary evidence provided by the parties, but also not to ignore other relevant evidence, so as to ensure comprehensive identification on the basis of evidence relevance.
Besides,? Debt collection? There is a statute of limitations, that is, if the other party fails to fulfill the repayment obligation within two years, if he does not claim his rights, he will lose the opportunity to win the lawsuit.
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