Whether the debtor of the loan should be deemed to be the debtor of the loan if he signs the "borrower" of the loan contract

Summary of the trial

1. In the practice of private lending, when the borrower and the borrower sign the loan contract, they often show non-standard characteristics in terms of form and content. When a party enters into a private loan contract, there are also situations where another person acts as a guarantor, witness, intermediary of the lender, or signs the IOU for other reasons based on relatives, friends, colleagues, or other social relationships.

2. If the lender (plaintiff) claims that one of the defendants is a co-borrower of the Loan Contract, it shall provide sufficient evidence to prove the identity of the defendant as a borrower. If there is a reasonable reason for the defendant to sign with the "borrower", but the lender only provides the above-mentioned "loan contract" without other sufficient evidence to support it, it is a failure to fulfill the necessary burden of proof.

Supreme People's Court of the People's Republic

Civil rulings

(2021) Supreme Law Min Shen No. 6853

Applicant for retrial (plaintiff of first instance, appellant of second instance): Duan Yuanyuan, female.

Respondent (defendant of first instance, appellee of second instance): Yan Yi, male

Respondent (defendant of the first instance, appellee of the second instance): Lin Jianguo, male

Duan Yuanyuan, the applicant for the retrial, was dissatisfied with the civil judgment of the Beijing High People's Court (2021) Jing Min Zhong No. 254 due to a private lending dispute with the respondents Yan Yi and Lin Jianguo, and applied to this court for a retrial. This court formed a collegial panel in accordance with the law to conduct a review, and the review has now been concluded.

Duan Yuanyuan applied for a retrial, saying: 1. The original judgment erred in determining the basic facts, and Lin Jianguo was a co-borrower and should jointly bear the responsibility of repaying principal and interest. The "Loan Contract" was signed by Duan Yuanyuan, Yan Yi and Lin Jianguo, and Duan Yuanyuan agreed to remit money only after Lin Jianguo signed it as a co-borrower. Lin Jianguo, as the financial person in charge of Yan Yi Company, should have known the consequences of signing at the borrower, and there was no witness clause in the Loan Contract, so the co-borrower was Lin Jianguo's true expression of intent. There is no signature of Lin Jianguo on the letterhead of the "Loan Contract" because the original borrower was only Yan Yi, and Lin Jianguo was a co-borrower who joined later, and Lin Jianguo's signature at the borrower's signature should prevail.

2. The main evidence for the determination of the basic facts in the original judgment has not been debated. During the trial of this case, witnesses such as Chen X 2, Chen X 1, and Xie X did not appear in court in person or online, so they could not question the witnesses, and their witness testimony should not be admitted. Xie's recording did not provide evidence within the evidence period, and it was not legal and relevant, and could not prove Lin Jianguo's claim. 3. The original judgment erred in applying the law, Duan Yuanyuan had provided preponderance of evidence sufficient to prove the identity of Lin Jianguo's co-borrower, and Lin Jianguo did not provide evidence to prove that he was a witness, and he should bear the adverse consequences. In summary, the application for retrial was made in accordance with the provisions of Article 207, Items 2, 4, and 6 of the Civil Procedure Law of the People's Republic of China.

Yan Yi submitted a written opinion stating that Lin Jianguo was the person in charge of finance hired by him, and only handled the loan on his behalf, not the borrower. The money involved in the case was actually used by Yan Yi himself, who did not know Duan Yuanyuan, and Xie was introduced and actually responsible for the operation of the loan, and the borrower was only Yan Yi, requesting that Duan Yuanyuan's application for retrial be rejected.

Lin Jianguo submitted a written opinion, stating that the basic facts found in the original judgment were clear and the law was correctly applied. Lin Jianguo and Duan Yuanyuan have never known each other, as Yan Yi's financial director, he only signed the "Loan Contract" as a handler and witness, not a borrower. The evidence submitted by Duan Yuanyuan in this case cannot prove that Lin Jianguo is the borrower, and she should bear the consequences of failing to provide evidence. Xie represented Duan Yuanyuan's interests in the process of borrowing, and the facts he admitted on the phone before the litigation in this case should be used as the basis for determining the facts. Chen X 1 and Chen X 2 worked in Guangdong and were unable to attend the trial during the epidemic period, but their testimony had been notarized and complied with the law, and they and Lin Jianguo jointly signed the interest calculation form.

After review, this court finds that this case is an application for retrial, and should be reviewed based on the reasons for Duan Yuanyuan's application for retrial, and whether the original judgment in this case has the corresponding circumstances provided for in items 2, 4, and 6 of Article 207 of the Civil Procedure Law of the People's Republic of China. The reasons for the retrial of Duan Yuanyuan's application are as follows:

1. On the issue of whether the basic facts ascertained in the original judgment lacked evidence. In the practice of private lending, when the borrower and the borrower sign the loan contract, the form and content are often irregular. When a party enters into a private loan contract, there are also situations where another person acts as a guarantor, witness, intermediary of the lender, or signs the IOU for other reasons based on relatives, friends, colleagues, or other social relationships. In this case, Duan Yuanyuan asserted that Lin Jianguo was the co-borrower of the Loan Contract involved in the case, and should provide sufficient evidence to prove Lin Jianguo's identity as the borrower. Based on the facts ascertained in the original review, Duan Yuanyuan determined that Lin Jianguo was the borrower on the basis that Lin Jianguo signed the borrower's back on the loan contract, and there was no other sufficient evidence to support it, and she did not fulfill the necessary burden of proof. On the contrary, Lin Jianguo, as the financial person in charge of Yan Yi's company, when Yan Yi was not present when the "Loan Contract" was signed, it was common sense for Lin Jianguo to sign as a witness first.

Judging from the content and performance of the "Loan Contract", the borrower, the remittance account and the transfer notes indicated in the contract all show that the borrower is Yan Yi and has nothing to do with Lin Jianguo. At the same time, the relevant testimony and audio recordings of witnesses Chen X 1 and Chen X 2 and Xie X as Duan Yuanyuan's loan introducer can also confirm that Lin Jianguo was not the borrower of the Loan Contract involved in the case, and Duan Yuanyuan did not provide evidence to prove that she or Xie X had claimed repayment and interest payment from Lin Jianguo during the performance of the contract. Therefore, based on the available evidence, the original judgment found that Lin Jianguo was not a co-borrower of the Loan Contract, which was not improper.

2. On the issue of whether the main evidence in this case has not been cross-examined. Based on the foregoing analysis, the original judgment found that Lin Jianguo was not a co-borrower of the Loan Contract, mainly on the basis that Duan Yuanyuan did not submit sufficient evidence to prove Lin Jianguo's identity as a borrower. The original judgment did not only rely on the witness testimony of Chen X 1 and Chen X 2 and Xie X as the main evidence to determine the basic facts of the case. At the same time, the witness testimony of Chen X 1 and Chen X 2 was notarized by a notary office, and the telephone recording between Lin Jianguo and Xie X was electronic evidence to prove the facts of the case. The court of first instance went through the cross-examination procedure for the above-mentioned evidence, and indicated that it would make a determination of the probative force of the above-mentioned evidence in conjunction with other existing evidence, rather than directly determining the basic facts of the case based on this evidence. In summary, there was no circumstance in the original judgment where the main evidence for the determination of facts had not been cross-examined.

3. On the issue of whether the law was applied in this case incorrectly. <中华人民共和国民事诉讼法>Article 91 of the Interpretation of the Supreme People's Court on Application stipulates: "The people's court shall determine the burden of proof in accordance with the following principles, unless otherwise provided by law: (1) the party asserting the existence of a legal relationship shall bear the burden of proof on the basic facts that gave rise to the legal relationship; The burden of proof shall be borne on the basic facts of extinction or obstruction of rights. In this case, Duan Yuanyuan asserted that Lin Jianguo was a party to the loan contract and that he should bear the burden of proof for the basic fact that Lin Jianguo was the borrower, and the original judgment did not erroneously apply the law.

In summary, Duan Yuanyuan's application for retrial does not meet the circumstances provided for in items 2, 4, and 6 of Article 207 of the Civil Procedure Law of the People's Republic of China. In accordance with the provisions of Article 211, Paragraph 1 of the Civil Procedure Law of the People's Republic of China and Article 395, Paragraph 2 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, it is ruled as follows:

Duan Yuanyuan's application for retrial was rejected.

Presiding Judge Ma Dongxu

Judge Ren Xuefeng

Adjudicator Shen Jia

January 20, 2022

Assistant Judge Xia Genhui

Clerk Gao Shan