Brief facts of the case
On December 21, 2017, in order to raise operating funds, the defendants a trading limited company and Zhang borrowed 500,000 yuan from the plaintiff Huang, agreed on a loan period of 15 days, and did not pay liquidated damages at 5% of the day when due, and issued an IOU.
A trading limited company stamped the company's financial seal at the IOU borrower, and Zhang signed at the IOU borrower.
In addition, the plaintiff provided evidence related to the contents of the remittance note and the repayment commitment to support it, and now the plaintiff demands that the second defendant repay the loan of 500,000 yuan and pay interest at 4 times the LPR.
It is a fact that a trading company admits to borrowing 500,000 yuan.
Zhang argued that the plaintiff was a "professional money lender" and should not be given legal protection in accordance with the law.
In addition, the court ascertained that in the two years from 2017 to 2018, there were a number of effective judgments, finding that the plaintiff Huang had been involved in private lending activities for a long time and had filed a large number of private lending lawsuits as a creditor, and that the plaintiff Huang's act of lending money to unspecified members of the public was illegal lending.
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Heard by the courts
The court held that the real existence of the loan of 500,000 yuan could be determined through the statements of the parties, the contents of the IOU and remittance orders, and the repayment commitment.
A trading limited company and Zhang respectively stamped and signed the IOU borrower, and it should be determined that the loan agreement reached by the two defendants and the plaintiff was not in violation of the law, and should bear the responsibility for repayment.
According to the effective court judgment, the plaintiff's lending behavior was illegal lending, and the loan contract involved in this case was also invalid.
After the contract is invalid, the property obtained as a result of the contract shall be returned, and the party at fault shall bear the corresponding liabilities, and the plaintiff shall have the right to demand the return of the loan from the two defendants.
Although the parties agreed on liquidated damages for overdue, the loan contract was found to be invalid, and the agreement was also invalid, and the plaintiff was at fault for the invalidity of the contract, and its request for the second defendant to pay interest at 4 times the LPR was not supported, but because the two defendants were also at fault, combined with the specific facts of this case, the second defendant should pay the plaintiff for the loss of the capital occupation period after the contract was invalid.
In summary, the defendant Trading Co., Ltd. and Zhang were ordered to return the plaintiff Huang's loan of 500,000 yuan and the losses during the period of capital occupation (the loss was based on the principal of 500,000 yuan, calculated according to the benchmark interest rate of the People's Bank of China for the same grade loan for the same period from December 21, 2017 to August 19, 2019, and calculated according to the loan market quotation rate announced by the National Interbank Funding Center for the same period from August 20, 2019 to the date of actual repayment).
What the judge said
How to identify a "professional money lender"?
What is the validity of the loan contract signed by the "professional money lender"?
Article 53 of the Minutes of the National Work Conference on the Trial of Civil and Commercial Cases by Courts stipulates that: "Legal persons engaged in private lending that have not obtained lending qualifications in accordance with the law, as well as private lending activities engaged in by unincorporated organizations or natural persons engaged in private lending shall be found to be invalid in accordance with law." Where the same lender repeatedly engages in paid private lending for a certain period of time, it may generally be found to be a professional money lender. The High People's Court or the Intermediate People's Court authorized by the High People's Court in a place where private lending is more active may formulate specific designation standards based on the actual situation in that region. ”
The "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending" clearly states that the standard for "regularly granting loans to unspecified targets in society" is set as "10 times in 2 years".
Paragraph 3 of Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases provides that "a lender who has not obtained lending qualifications in accordance with law provides loans to unspecified targets in society for the purpose of making profits" shall be deemed invalid.
In this case, the plaintiff Huang did not obtain the qualification to lend in accordance with the law, and in the two years from 2017 to 2018, the plaintiff Huang, as a creditor, repeatedly engaged in paid private lending against unspecified objects, and filed a large number of private lending lawsuits, and the plaintiff Huang's borrowing behavior had the characteristics of repetitive, regular, unspecific objects, relatively concentrated borrowing time, high borrowing interest rates, and the signing of loan contracts tended to be formatted, so the plaintiff Huang should be determined to be a "professional money lender" and "professional money lender" The loan contract signed by Huang is invalid.
Source: Chengwu Court, Shandong High Court Contributed by: Liang Yunxiu