This is a case of private lending disputes.
The facts of the case are very simple, and the main point of contention is actually one, that is, the lender withdraws money from the bank to the borrower, and the borrower issues an IOU, but afterwards says that he did not actually receive the money.
In this case, who else can the court believe but the IOU?
So, in order to solve this situation, the best way is to transfer money from the bank and then issue an IOU. In this way, the evidence is conclusive, the money is cleared, and everyone is clean.
Attached: The second-instance judgment of the private lending dispute between Wei, Zhang and Zhan
Intermediate People's Court of Shenyang City, Liaoning Province
Civil Judgments
(2023) Liao 01 Min Zhong No. 18415
Appellant (defendant in the original trial): Wei, male, born on December 3, 1986, Han nationality, living in Dadong District, Shenyang City.
Appellant (defendant in the original trial): Zhang, female, born on February 21, 1965, Han nationality, living in Dadong District, Shenyang City.
2. The appellant entrusted an agent ad litem: Sun Weiwei, a lawyer at Liaoning Yishanyuan Law Firm.
Appellee (plaintiff in the original trial): Zhang, female, born on August 30, 1960, Han nationality, living in Heping District, Shenyang City.
Entrusted agent ad litem: Wang (Zhan Lijun's husband), male, born on June 22, 1962, Han nationality, living in Heping District, Shenyang City.
Entrusted litigation agent: Chen Jihong, a lawyer of Liaoning Huayi Law Firm.
Appellants Wei and Zhang appealed to this court against the (2022) Liao 0102 Min Chu No. 14509 Civil Judgment rendered by the Shenyang Heping District People's Court due to a private lending dispute with the appellee Zhan Lijun.
After this court accepted the case on October 31, 2023, Adjudicator Kong Xiangzheng served as the presiding judge in accordance with the law, and a collegial panel with Adjudicator Chen Xingtian (presiding judge) and Cheng Xi conducted the trial. The case is now closed.
Wei's appeal request:
revoke the (2022) Liao 0102 Min Chu No. 14509 Civil Judgment, remand for reaffirmation or change the judgment in accordance with law;
The appellee shall bear the litigation costs of the first and second instance of this case.
Facts & Reasons:
The facts found in the first-instance judgment were unclear and lacked evidence to support it, and the appellant did not recognize the amount determined in the first-instance judgment.
Zhan Lijun argued that she agreed with the first-instance verdict.
Zhang's appeal request:
revoke the (2022) Liao 0102 Min Chu No. 14509 Civil Judgment, remand for reaffirmation or change the judgment in accordance with law;
The appellee shall bear the litigation costs of the first and second instance of this case.
Facts & Reasons:
The first-instance judgment found that the facts were erroneous and lacked evidence.
The first-instance judgment found that the appellant omitted to repay 20,000 yuan to Wang Tingting on March 9, 2018 in the amount of the loan;
On October 23, 2018, he repaid 10,000 yuan to Zhan Lijun;
On November 8, 2018, he repaid 15,000 yuan to Zhan Lijun;
On December 17, 2019, he repaid 1,800 yuan to Wang Tingting.
The facts found in the first-instance judgment partially confirmed that Wang Tingting's bank card withdrew 200,000 yuan on March 21, 2012, lent and delivered it to the appellee, and lacked evidence.
Although the bank card statement submitted by the Appellee in Wang Tingting's name stated that 200,000 yuan was withdrawn in cash on March 21, 2012, under the circumstance that the Appellant did not approve it, in the first-instance trial, the Appellee did not assign the burden of proof to the Appellee to submit the withdrawal voucher at the bank, nor did it investigate the Appellee's claim to withdraw money on behalf of Wang Tingting in the bank ex officio, that is, in the case of the facts identified in this case, it was determined that the fact that the bank card in Wang Tingting's name withdrew 200,000 yuan on March 21, 2012 was obviously a lack of evidence and was an error in determining the facts。
The Appellee claimed that it had paid a loan of RMB 200,000 to the Appellant in Kunpeng Community, Huanggu District, and in response to this, the Appellant admitted that he had engaged in second-hand housing trading business activities in the house located at No. 120 Zhujiang Street, Huanggu District, Kunpeng Community, Huanggu District until the summer of 2011, and then because the owner of the house subleased the house to the Huashan Road Branch of Shenyang Jiutou Niu Delicious Hot Pot Restaurant, see the new evidence submitted by the Appellant, indicating that the store was registered on September 21, 2011.
It can be seen that on March 21, 2012, the house at the address was used for the operation of a hot pot restaurant, and the appellee's claim that it had paid a loan of 200,000 yuan to the appellant at the above address on March 21, 2012, failed to submit evidence to prove it.
Based on the IOU issued by the appellant, the court of first instance held that the two parties had erred in characterizing the relationship between the two parties and lacked factual and legal basis.
The content of the IOU disputed by the parties in this case was only: "I borrowed RMB from Zhan Lijun today and picked up two thousand thousand two hundred yuan", and the appellant claimed that the loan did not actually occur, and the court of first instance only relied on the subjective assumption of the amount stated in the article to confirm the debt relationship between the two parties, and confirmed it after inferring the non-existent facts of the case, and found that the monthly interest rate was 2%, which was obviously lacking evidence.
Even though the interest on the loan was calculated at 2% per month, for the Appellant's loan of RMB 530,000, as of November 25, 2018, the sum of the principal and interest actually owed by the Appellant was inconsistent with the amount stated in the IOU.
In accordance with the provisions of the law and in accordance with the method of calculating interest before principal, the appellant has reached the following conclusions:
As of November 25, 2018, the Appellant was in arrears with the principal of the loan of RMB 430,000 and the interest of RMB 8,376.29, and the sum of the principal and interest was RMB 438,376.29, which was a huge difference from the amount of RMB 825,200 stated in the IOU and was obviously inconsistent (see calculation table).
It can be seen that the Appellee's claim that the loan amount of RMB 825,200 stated in the IOU is the sum of the principal and interest of the loan of RMB 730,000 cannot be established.
In addition, the first-instance judgment also found that the Appellant's regular repayment of the loan after the issuance of the IOU was unreasonable, and therefore, there was no factual and legal basis to support the Appellee's claim.
According to the appellant's calculation conclusion, as of November 25, 2018, the appellant still owed the appellee the principal of the loan of 430,000 yuan and the interest of 8,376.29 yuan.
湛丽君辩称，就张某上诉状：
The four sums of money are not within the scope of our payment, 10,000 yuan on October 23, 2018, and 15,000 yuan on November 8, 2018.
On March 9, 2018, 20,000 yuan was given to Wang Tingting.
On December 17, 2019, Wang Tingting was repaid 1,800 yuan, which were not included in the repayment details submitted by us to the court.
These two sums of money were exchanged with Wang Tingting, and we submitted a judgment to the court to prove it after the trial.
Regarding 200,000 cash, Kunpeng Community, the time and place of our handover are handed over in accordance with the requirements.
The appellant did not raise any objection in the first instance, and there was no change in the place of business.
As for the calculation of interest, there is a regular repayment, and I agree with the judgment of the first instance.
Regarding the issue of joint and several liability of Wei, there is a legal basis for signing and acknowledging as a guarantor in the IOU, and assuming joint and several liability.
Zhan Lijun filed a lawsuit with the court of first instance, requesting:
requested the people's court to order Zhang to immediately pay the arrears of 478,700 yuan in accordance with the law, and Wei to bear the obligation to pay jointly and severally;
request the people's court to order Zhang and Wei to pay interest on overdue payments in accordance with the law (based on 478,700 yuan from the time of Zhan Lijun's lawsuit to the date of repayment, calculated according to the one-year loan prime rate (LPR));
Zhang and Wei are to bear all the litigation costs of this case.
The court of first instance found the facts:
Zhan Lijun and Wang Zhanjun are husband and wife, and Wang Tingting is the daughter of the two.
Wang Zhanjun transferred and remitted 50,000 yuan to Zhang on April 28, 2010, 100,000 yuan on October 8, 2010, and 100,000 yuan on November 26, 2016;
Zhan Lijun transferred money to Zhang, 150,000 yuan on September 26, 2011, 100,000 yuan on September 3, 2014, and 30,000 yuan on March 18, 2016;
On March 21, 2012, Wang Tingting withdrew 200,000 yuan from the bank, and the 200,000 yuan was delivered to Zhang.
Zhang also repaid Zhan Lijun's loan many times, 100,000 yuan on January 24, 2011 (repaid to Wang Zhanjun), 13,000 yuan on April 25, 2012, 10,350 yuan on December 20, 9,000 yuan on January 24, 2013, 9,000 yuan on May 27, 9,000 yuan on July 29, 9,000 yuan on December 24, 9,000 yuan on January 23, 2014, 1,900 yuan on March 2, 9,000 yuan on May 26, 2014, 9,000 yuan on June 21, 9,000 yuan on September 1, 1,000 yuan on November 7, 20,000 yuan on March 27, 2015, 5,000 yuan on April 10, 11,000 yuan on May 29, 11,000 yuan on July 27, 19,000 yuan on November 2, 14,000 yuan on November 6, 11,000 yuan on November 25, 11,000 yuan on December 24, 8,500 yuan on January 27, 2016, 5,000 yuan on February 29, 33,000 yuan on May 17, 11,600 yuan on June 26, 5,600 yuan on July 31, 29,000 yuan on November 5, 10,000 yuan on January 27, 2017, 50,000 yuan on February 7, 2018, 30,000 yuan on February 9, 90,000 yuan on July 16, 10,000 yuan on September 15, and 1,000 yuan on November 10.
On November 26, 2018, Wei and Zhang issued an IOU to Zhan Lijun, stating: Today, they will borrow RMB from Zhan Lijun to pick up two thousand yuan and two hundred yuan.
Since then, Zhang has repaid Zhan Lijun's loan many times, 10,000 yuan on December 3, 2018, 10,000 yuan on January 10, 20,000 yuan on January 11, 30,000 yuan on March 30, 20,000 yuan on May 1, 7,000 yuan on May 6, 3,000 yuan on May 6, 20,000 yuan on May 30, 20,000 yuan on June 26, 10,000 yuan on August 9, 30,000 yuan on September 9, 30,000 yuan on December 7, 30,000 yuan on January 21, 2020, 20,000 yuan on March 9, 20,000 yuan on April 30, 4,600 yuan on May 28, and 30,000 yuan on June 17.
Zhan Lijun admitted that she also withdrew 31,900 yuan from Zhang's salary card.
After November 26, 2018, Zhang repaid a total of 346,500 yuan, and the remaining loans Zhang and Wei did not repay, and Zhan Lijun sued the hospital.
In the case of the unjust enrichment dispute between Zhang and Zhan Lijun, the court of first instance rendered the (2021) Liao 0102 Min Chu No. 24194 civil judgment on February 28, 2023, rejecting Zhang's litigation claim, after which Zhang was dissatisfied with the judgment and appealed, and the Shenyang Intermediate People's Court rendered the (2023) Liao 01 Min Zhong No. 7633 civil judgment on July 19, 2023, upholding the civil judgment of the court of first instance (2021) Liao 0102 Min Chu No. 24194 and rejecting Zhang's appeal.
The court of first instance held that a party should provide evidence to prove the facts on which its own claims are based or the facts on which it refutes the claims of the other party, 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.
Article 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (adopted at the 1823rd meeting of the Adjudication Committee of the Supreme People's Court on December 23, 2020) provides that the amount of the loan indicated in the IOU, receipt, IOU and other credit vouchers is generally deemed to be the principal. Where interest is deducted from the principal in advance, the people's court shall determine the amount actually lent as the principal.
Zhan Li Monarch Zhang had previously agreed with Zhang and Wei that the interest on the loan was two cents per month, and the agreement did not violate the law.
A legitimate lending relationship is protected by law.
In order to prove the existence of a loan relationship and amount with Zhang, Zhan Lijun submitted to the court of first instance the transfer voucher (530,000 yuan), the withdrawal voucher (200,000 yuan), and the IOU issued by Zhang and Wei to Zhan Lijun (825,200 yuan Zhan Lijun stated that the above amount was an IOU reissued after calculating the principal and interest of Zhang's outstanding amount, and was not a new borrowing relationship), and Zhang Minhui had completed her burden of proof by repaying the bank transaction records of the loan several times.
Zhang's defense was that he only borrowed 530,000 yuan from Zhan Lijun, did not receive 200,000 yuan in cash, did not agree on interest with Zhan Lijun, and had repaid 977,250 yuan, and did not owe Zhan Lijun a loan, for which Zhang Minhui failed to provide sufficient evidence to prove that Zhang Minhui claimed that Zhan Lijun had not fulfilled her obligation to deliver the loan when she issued the IOU, that she had repaid all the loans when she issued the IOU, but that it was unreasonable to repay the loan regularly for a long time after the IOU was issued, and that he, as a person with full civil capacity, should have known the legal consequences of issuing the above-mentioned IOU and repaying the loan regularly for a long time, so the court of first instance found that as of November 26, 2018, Zhang Minhui still owes Zhan Lijun a loan principal of 825,200 yuan, and after deducting the loan of 346,500 yuan, Zhang Minhui should also repay Zhan Lijun's loan of 478,700 yuan.
Because Zhang Minhui and Wei jointly issued an IOU to Zhan Lijun, Zhang and Wei should jointly repay Zhan Lijun's loan, and now Zhan Lijun requires Wei to bear joint and several payment obligations, which does not violate the provisions of the law, and the court of first instance supports it.
Paragraph 2 of Article 31 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (adopted at the 1823rd meeting of the Adjudication Committee of the Supreme People's Court on December 23, 2020) provides: " In a new first-instance private lending case accepted after August 20, 2020, where the loan contract was established before August 20, 2020, and the parties request that the interest part from the conclusion of the contract to August 19, 2020 be applied to the judicial interpretation at that time, the people's court shall support it, and for the interest part from August 20, 2020 to the date of return of the loan, the interest rate protection standard provided for in this article shall be applied to the calculation of the interest rate protection provided for in this article at the time of litigation. ”
Due to Zhang and Wei's overdue performance of payment obligations, Zhan Lijun's lawsuit requesting Zhang and Wei to pay overdue interest at the one-year loan market prime rate at the time of their lawsuit was supported by the court of first instance.
In summary, in accordance with the Civil Code of the People's Republic of China
Article 577
Article 675
Article 676
Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (adopted at the 1823rd meeting of the Adjudication Committee of the Supreme People's Court on December 23, 2020)
Article 31
Article 67 of the Civil Procedure Law of the People's Republic of China and Article 90 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China render the judgment as follows:
Zhang paid Zhan Lijun a loan of 478,700 yuan within 10 days after this judgment came into effect, and paid interest at an annual interest rate of 3.65% from September 26, 2022 until the date of actual repayment;
Wei is jointly and severally liable for Zhang's payment obligations.
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 delay in performance shall be doubled in accordance with article 260 of the Civil Procedure Law of the People's Republic of China.
The case acceptance fee is 8,481 yuan, which is borne by Zhang and Wei.
In the second instance, the appellants Zhang and Wei submitted new evidence to the court, namely evidence 1 and the details of the four repayments, which were explained in the appeal pleading, proving:
The facts of the first-instance review are unclear, and there is no deduction for those that should be deducted.
Evidence 2, the basic information of the shop, the party did not operate in Kunpeng in September 2011, and the appellee's claim that it sent 200,000 yuan to the business address of Kunpeng in March 2012 is inconsistent with the facts. The facts of the first-instance review were unclear.
Evidence 3: The appellant's calculation details show that the loan of 530,000 yuan has been repaid at a monthly interest rate of 1.5.
Appellee Zhan Lijun's cross-examination opinions were:
As for the first evidence and the existence of four repayments, our defense just now is a cross-examination opinion, which is also reflected in the repayment details submitted by us to the court.
As for evidence 2, the business address was revoked, because the annual inspection was not carried out, but the business address was still at the original address, and the Jiutouniu hot pot restaurant had nothing to do with the original store.
As for evidence 3, we did not accept the details submitted by the appellant, but in the first instance, we had already made the details and submitted them, and the other party also cross-examined them.
The appellee, Zhan Lijun, submitted new evidence to the court, namely the judgment (2020) Liao 0105 Min Chu No. 12152, which proved that there were other business dealings between Wang Tingting and the appellant.
Appellants Zhang and Wei cross-examined and argued: If the Appellee believes that there is another transaction between us and Wang Tingting, then the details of the loan between us and Wang Tingting submitted by the Appellee in the first instance are also irrelevant to this case.
This court affirms the facts ascertained by the court of first instance.
This court held that with regard to the appellants Zhang and Wei's assertion that the amount of the loan should not be determined by the content of the IOU issued by the two of them, the court of first instance erred in determining the actual amount of the loan and the amount owed.
According to Article 67 of the Civil Procedure Law of the People's Republic of China, "the parties have the responsibility to provide evidence for their own claims. ”
In this case, in order to prove her claim, the appellee Zhan Lijun provided bank transfer details, sorting details, an IOU in the amount of RMB 825,200 issued by the second appellant for the appellee on November 26, 2018, WeChat chat records between Zhan Lijun and Zhang on July 12, 2020, household registration book, marriage certificate, credit certificate, business license and other relevant evidence to prove the fact of the loan and the amount of the loan.
The appellant had no objection to the authenticity of the above evidence, but argued that the amount of the loan should be determined by the amount transferred between the two parties, that the two parties had not agreed on interest, that the loan had been repaid, and that the appellee had not paid the agreed loan after the IOU was issued.
At the same time, four pieces of evidence (2021) Liao 0102 Min Chu 24194 civil judgment, bank statements, and photos were presented to prove that the total repayment amount was 894,550 yuan.
The Appellee recognized the authenticity of the evidence, but claimed that after the IOU was issued, the Appellant only repaid part of the arrears, and 478,700 yuan remained unpaid.
In the second instance, the appellant claimed that the repayment of the loan amount of 20,000 yuan to Wang Tingting on March 9, 2018 was omitted;
On October 23, 2018, he repaid 10,000 yuan to Zhan Lijun;
On November 8, 2018, he repaid 15,000 yuan to Zhan Lijun;
On December 17, 2019, Wang Tingting repaid 1,800 yuan, and the first-instance judgment found that Wang Tingting's withdrawal of 200,000 yuan on March 21, 2012 to lend to the appellant lacked evidence, and provided corresponding evidence.
The Appellee claimed that there were other economic dealings between the Appellant and Wang Tingting, and provided the Civil Judgment of the Shenyang Huanggu District People's Court (2020) Liao 0105 Min Chu No. 12152 to prove it.
This court held that the appellee Zhan Lijun provided a voucher of 530,000 yuan for the transfer of loans between herself and her husband Wang Zhanjun and the appellant Zhang from April 28, 2010 to March 18, 2016, and a bank withdrawal voucher of 200,000 yuan for her daughter Wang Tingting on March 21, 2012, combined with the fact that the appellants Zhang and Wei had repaid the appellee several times thereafter, and the second appellant issued an IOU of 825,200 yuan to the appellee Zhan Lijun on November 26, 2018 As of November 26, 2018, the Appellant had not owed the Appellee a loan of RMB 825,200.
However, the court of first instance found that it was not improper for the Appellant to owe the Appellee a loan of RMB 478,700 and the corresponding interest in light of the fact that the Appellant had repaid the Appellee a total of RMB 346,500 since then.
As for the second appellant, the original trial court claimed that it had omitted to repay Wang Tingting RMB 20,000 on March 9, 2018;
On October 23, 2018, he repaid 10,000 yuan to Zhan Lijun;
On November 8, 2018, the Appellee repaid 15,000 yuan to Zhan Lijun and 1,800 yuan to Wang Tingting on December 17, 2019, and the Appellee provided the civil judgment of the Shenyang Huanggu District People's Court (2020) Liao 0105 Min Chu No. 12152 to prove that there were other economic transactions between the appellant Zhang and Wang Tingting.
Combined with the issue of the appellant's repaid money in this case, both parties had determined the total amount of repayment by the appellant in the first instance and had no objection, so the appellant's claim could not fully prove the fact that the repaid amount was omitted in this case. This court does not support the appellant's claim in accordance with law.
In summary, Zhang's and Wei's appeal requests are not sustained, and this court does not support them. In accordance with Article 177, Paragraph 1, Item 1 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee is 16,962 yuan, and the appellants Zhang and Wei are to bear 8,481 yuan respectively.
This judgment is final.
Presiding Judge Kong Xiangzheng
Adjudicator: Chen Xingtian
Adjudicator Cheng Xi
January 25, 2024
Judge's Assistant: Wang Zhiru
Clerk Chen Jiao
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