This is a case of private lending disputes.
The facts of the case are not complicated, and the main points of dispute focus on whether it is professional lending, and the calculation method of the principal and interest of the loan.
The plaintiff sued:
It is requested that He XX and Lan X be ordered to jointly and severally repay the principal of Zhang X's loan of RMB 1,000,000 and pay interest from November 20, 2018 to the date of actual payment (based on RMB 1,000,000 and calculated at an annual interest rate of 15.4%);
It is requested that the litigation costs of this case be ordered to be borne by He XX and Lan X.
First Instance Verdict:
Within 10 days from the effective date of this judgment, He XX and Lan X shall repay the principal of Zhang X's loan of RMB 649,000 and the interest from December 2018 to the date of actual payment (based on RMB 649,000 and calculated at four times the one-year loan market prime interest rate at that time);
Zhang X's other claims were dismissed. The case acceptance fee is 16,728 yuan, Zhang X bears 8,528 yuan, He XX and Lan X bear 8,200 yuan, and the announcement fee is 600 yuan, which is borne by Tianjin XX Investment Development Co., Ltd. ”
The court of second instance reversed the judgment:
revoke the civil judgment of Tianjin Hedong District People's Court (2022) Jin 0102 Min Chu No. 12364;
He XX and Lan X shall repay the principal and interest of the loan of RMB 607,490 and interest on Zhang X within 15 days from the date of the effective date of this judgment (based on RMB 607,490, calculated at an annual interest rate of 15.4% from November 26, 2018 to August 19, 2019; and calculated at four times the loan market prime rate announced by the National Interbank Funding Center from August 20, 2019 to the date of actual payment);
rejected the other appeals of He XX and Lan X;
Zhang X's other claims in the first instance were rejected.
It can be seen that the court of second instance changed the judgment in the following places:
First, the court of first instance miscalculated the principal.
Second, the interest is not calculated in stages as required by law.
Attached: He XX, Lan X and other civil judgments of the second instance of private lending disputes
Tianjin No. 2 Intermediate People's Court
Civil Judgments
(2024) Jin 02 Min Zhong No. 401
Appellant (defendant in the original trial): He XX, female, born on July 27, 1968, Han nationality, living in Hedong District, Tianjin.
Entrusted litigation agent: Zhang Xiaoyu, lawyer of Tianjin Wanjun Law Firm.
Appellant (defendant in the original trial): Lan X, male, born on November 23, 1971, Han nationality, living in Hedong District, Tianjin.
Entrusted litigation agent: Zhang Xiaoyu, lawyer of Tianjin Wanjun Law Firm.
Appellee (plaintiff in the original trial): Zhang X, female, born on March 10, 1971, Han nationality, living in Hexi District, Tianjin.
Entrusted litigation agent: Zhang Yue, lawyer of Tianjin Senyu Law Firm.
Entrusted litigation agent: Yue Dongwei, lawyer of Tianjin Senyu Law Firm.
The third party of the original trial: Tianjin XX Investment Development Co., Ltd., domiciled in Hexi District, Tianjin.
Legal representative: Zhang X, manager.
Appellants He XX and Lan X appealed to this court against the civil judgment of Tianjin Hedong District People's Court (2022) Jin 0102 Min Chu No. 12364 due to a private lending dispute with the appellee Zhang X and the third party of the original trial, Tianjin XX Investment Development Co., Ltd. (hereinafter referred to as the investment company).
After the case was filed on January 8, 2024, this court formed a collegial panel in accordance with the law, and after reading the case file and questioning the parties, it conducted a trial without holding a court session in accordance with the law. The case is now closed.
He XX and Lan X's appeal request:
request that the first-instance civil judgment be revoked in accordance with law and remanded for a new trial;
The litigation costs shall be borne by Zhang X.
Facts and Reasons:
The first-instance judgment found that the basic facts were unclear and the law was erroneously applied.
Zhang X is not a qualified plaintiff in this case, and the court of first instance should rule to dismiss the lawsuit.
The actual lender investment company is suspected of being a "professional money lender".
Zhang X was suspected of false litigation, and the court of first instance failed to focus on reviewing and preventing him in accordance with law.
Zhang X argued that the court of first instance had a clear determination of facts and correctly applied the law, and requested that the appeal requests of He XX and Lan X be rejected in accordance with the law and the original judgment should be upheld.
The investment company did not make a statement.
Zhang X filed a lawsuit with the court of first instance, requesting that:
It is requested that He XX and Lan X be ordered to jointly and severally repay the principal of Zhang X's loan of RMB 1,000,000 and pay interest from November 20, 2018 to the date of actual payment (based on RMB 1,000,000 and calculated at an annual interest rate of 15.4%);
It is requested that the litigation costs of this case be ordered to be borne by He XX and Lan X.
The court of first instance found the facts:
On March 26, 2018, with He XX and Lan X as the borrowers, Zhang X as the lender, and the investment company signed a mortgage loan contract for the intermediary party, with a loan amount of 1,000,000 yuan, a monthly interest rate of 1.6%, and a loan period from March 26, 2018 to March 25, 2019. Lan X issued an IOU, stating: I borrowed RMB 100,000 from Zhang X on March 26, 2018, and I guarantee that the above loan will be repaid to Zhang X in one lump sum before March 25, 2019, and if I violate the agreement, I will voluntarily assume all legal responsibilities.
He XX and Lan X claimed that they transferred 55,000 yuan to the investment company Liu XX every month from March 2018 to November 2018, and then Liu XX transferred 16,000 yuan to Zhang X.
The court of first instance held that the focus of the dispute in this case was whether there was a loan relationship between the two parties.
According to the statements of both parties, as well as the mortgage loan contract, IOUs and transfer records provided by Zhang X, it can be confirmed that there is a loan relationship between Zhang X, He XX and Lan X, and with regard to the amount of money that He XX and Lan X need to repay, the loan interest rate agreed by Zhang X, He XX and Lan X is 1.6% per month, and He XX and Lan X claim that they transferred 55,000 yuan to the investment company Liu XX every month from March 2018 to November 2018, and then Liu XX transferred it to Zhang X16. 000 yuan, Zhang X admitted that he received 16,000 yuan from March 2018 to November 2018, but the overcharge of 39,000 yuan received by the investment company Liu XX from March 2018 to November 2018 has no legal basis and should be discounted to the principal, and after calculation, the remaining principal should be repaid is 649,000 yuan.
With regard to He XX and Lan X's defense that the actual lender is a third party, according to the law, the parties shall provide evidence to prove the facts on which their own claims are based or the facts on which they refute the other party's claims, unless otherwise provided by law.
Where a party fails to provide evidence or the evidence is insufficient to prove its factual assertion before a judgment is rendered, the party who bears the burden of proof shall bear the adverse consequences.
The evidence adduced by He XX and Lan X could not prove their claim, and the court of first instance did not support their defense.
With regard to Zhang X's claim for interest, He XX and Lan X should pay Zhang X the interest from December 2018 to the date of actual payment, based on RMB 649,000, calculated at four times the one-year loan prime interest rate at that time.
To sum up, in accordance with the Civil Code of the People's Republic of China
Article 674,
Article 675
Article 676
Article 147 of the Civil Procedure Law of the People's Republic of China,
Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases
Article 28 (2) (b)
The Supreme People's Court on the application of Article 90 of the Interpretation of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
Within 10 days from the effective date of this judgment, He XX and Lan X shall repay the principal of Zhang X's loan of RMB 649,000 and the interest from December 2018 to the date of actual payment (based on RMB 649,000 and calculated at four times the one-year loan market prime interest rate at that time);
Zhang X's other claims were dismissed. The case acceptance fee is 16,728 yuan, Zhang X bears 8,528 yuan, He XX and Lan X bear 8,200 yuan, and the announcement fee is 600 yuan, which is borne by Tianjin XX Investment Development Co., Ltd. ”
In the second instance, He XX and Lan X submitted evidence: 1. (2021) Jin 0110 Min Chu No. 5414 Dongli District People's Court Civil Mediation Statement, (2019) Jin 0104 Min Chu No. 11592 Nankai District People's Court Civil Judgment, Case No. 2149 Complaint and Mortgage Loan Contract, proving 5414, No. 11592 is a private lending case involving an investment company, and there are 5 cases related to investment companies in Tianjin within two years, with a high degree of formatting, and according to Articles 21 and 24 of the Guidelines for the Trial of Private Lending Cases of the Tianjin High People's Court, it should be recognized as a professional money lender;
The bank statements in the names of the payees Liu XX and Zhang X could not be scribbled and marked in the original evidence obtained through the lawyer's investigation order in the first instance, so He XX and Lan X sorted out to prove that the investment company issued loans to unspecified people in the society through Liu XX's account to collect high interest, and Zhang X's bank statements also showed that only one account with the tail number 9233 under Zhang X's name received money from Liu XX and others amounting to 4066255 yuan, excluding the last time he received money from He XX through the investment company. The 1 million yuan borrowed by Lan X is nearly 6 million yuan if the principal and interest of the previous loan are included, and the long-term cooperative relationship between Zhang X and the investment company is illegal high-interest lending.
Zhang X's cross-examination opinion is that the above evidence is not new evidence and has nothing to do with this case, and cannot prove the claims of He XX and Lan X.
The summary table compiled by He XX and Lan X is made by themselves, and the authenticity, legitimacy, and relevance are not recognized.
The court's certification opinion is that the authenticity is confirmed, but the purpose cannot be proved, and the court does not accept it.
The court held that the focus of the dispute in this case was whether Zhang X had the right to claim rights in respect of the loan involved in the case and the amount of repayment to be repaid by He XX and Lan X.
The "Mortgage Loan Contract" signed by He XX, Lan X and Zhang X is the true expression of the intention of both parties and is legal and valid. Both parties shall perform their obligations in accordance with the agreement.
After the contract was signed, Zhang X transferred money to He XX with his own funds, and He XX and Lan X also acknowledged the receipt of the above money and issued an IOU to make a commitment to the repayment period.
Although He XX and Lan X asserted that the investment company was the actual lender and that Zhang X was instructed by the investment company to transfer money to He XX and Lan X, they did not provide evidence to prove this, so this court did not accept it.
A comprehensive analysis of the evidence in the case, as well as Zhang X's economic situation, the source of the funds, and other facts, can confirm that there was a loan relationship between He XX, Lan X, and Zhang X.
Now He XX and Lan X have failed to repay the principal and interest of the loan as agreed by both parties, and Zhang X, as the actual lender, has the right to claim rights from He XX and Lan X.
Therefore, Zhang X's request for He XX and Lan X to repay the principal and interest of the loan was in accordance with the law, and this court supported it.
Regarding the amount of repayment, on the day that Zhang X lent 1 million yuan, He XX and Lan X transferred 55,000 yuan to Liu XX, so the principal amount of Zhang X's actual loan amount should be 945,000 yuan.
During the trial, Zhang X admitted that the 55,000 yuan repaid by He XX and Lan X on January 25, 2019 was the repayment of the interest payable on November 25, 2018, and this court approved it.
Combined with the amount of money transferred by He XX and Lan X every month, after calculation, He XX and Lan X still have the remaining loan principal of 607,490 yuan unrepaid.
With regard to the interest, the interest for the period from November 26, 2018 to August 19, 2020 was calculated according to the standard of 15.4% per annum, which did not exceed the scope prescribed by law, so this court approved it.
The interest from 20 August 2020 to the date of actual payment shall be calculated at four times the loan prime rate published by the National Interbank Funding Center.
With regard to the section on He XX and Lan X's claim that Zhang X had a false lawsuit, the parties have the responsibility to provide evidence to prove their claims.
Now he believes that Zhang X has committed false litigation, but has not submitted evidence to prove this, and should bear the legal responsibility for failing to provide evidence.
Therefore, this court does not accept this reason.
In summary, the appeal requests of He XX and Lan X are partially sustained;
The first-instance judgment was incorrect in calculating the amount, and this court adjusted it.
In accordance with the first paragraph of Article 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (Second Amendment in 2020),
Article 31,
Article 176, Paragraph 1, and Article 177, Paragraph 1, Paragraph 2 of the Civil Procedure Law of the People's Republic of China provide that the judgment is as follows:
revoke the civil judgment of Tianjin Hedong District People's Court (2022) Jin 0102 Min Chu No. 12364;
He XX and Lan X shall repay the principal and interest of the loan of RMB 607,490 and interest on Zhang X within 15 days from the date of the effective date of this judgment (based on RMB 607,490, calculated at an annual interest rate of 15.4% from November 26, 2018 to August 19, 2019; and calculated at four times the loan market prime rate announced by the National Interbank Funding Center from August 20, 2019 to the date of actual payment);
rejected the other appeals of He XX and Lan X;
Zhang X's other claims in the first instance were rejected.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt for the period of delayed performance shall be doubled in accordance with article 264 of the Civil Procedure Law of the People's Republic of China.
The first-instance case acceptance fee is 16,728 yuan, the announcement fee is 600 yuan, Zhang X bears 6,801 yuan, and He XX and Lan X bear 10,527 yuan.
The second-instance case acceptance fee is 16,728 yuan, of which 6,566 yuan is borne by Zhang X, and 10,162 yuan is borne by He XX and Lan X. The announcement fee is 200 yuan, which is borne by He XX and Lan X.
This judgment is final.
Presiding Judge: Zhang Yanjun
Judge Yue Wenjun
Judge Fang Lijia
January 31, 2024
Clerk: Shao Yueting
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