Recently, entrusted by customer Zhao, he wants to recover loans and interest from his friend Zhou, and he does not know whether he can get support?
Basic facts:
Zhao's friend Zhou proposed a loan to Zhao, and Zhao said that he did not have so much money in his hands. Zhou proposed that he could borrow money from the bank in the name of Zhao and lend it to Zhou, and the principal and interest that should be repaid to the bank every month was transferred from Zhou to Zhao, and then returned to the bank by Zhao. Zhao Mou felt that the other party was his friend for many years, running a company with good benefits, and the principal and interest of the loan from the bank were repaid by Zhou Mou, and he had no losses. Zhao borrowed 300,000 yuan from the bank, repaid it in three years, and repaid the principal and interest every month. Subsequently, the bank directly lent money to Zhou in accordance with the contract. In the first few months, Zhou was still able to transfer the principal and interest to Zhao's account on time, and the bank deducted the money on a monthly basis. Later, Zhou Mou failed to do business, and he no longer repaid Zhao's money. Helplessly, Zhao could only repay the bank principal and interest on a monthly basis, and then recover the money from Zhou, but Zhou ignored it.
It is natural to repay the debt, but this money is not Zhao's own funds, but after borrowing from the bank and then re-lending, in this case, will the interest on the re-loan from the bank be supported? In judicial practice, there are two views on adjudication:
Point 1: Whether it is an enterprise or an individual, taking a loan from a financial institution for refinancing violates the normative requirement that the source of funds for private lending should be its own funds, and arbitrage of a loan from a financial institution for the use of funds by other enterprises and individuals is itself an act of circumventing supervision and disrupting the financial order, so such contracts should also be considered invalid, so it is only necessary to return the outstanding principal, and do not support interest!
Point 2: In favor of some of the views of point 1, such contracts should also be found to be invalid, but after the contract is invalid, the property acquired as a result of the contract should be returned, and the party at fault should compensate the other party for the losses suffered as a result. In other words, although the contract between the two parties is an invalid contract, in addition to the principal that has not yet been returned, the interest on the bank loan should also be returned.
Lawyer's opinion
Lawyer Li Yan believes that viewpoint 2 is more in line with legal provisions and judicial practice. The principal amount derived from the bank loan and the interest generated on the bank loan belong to the property obtained by the other party. The fact that the interest generated on the bank loan is not directly attributable to the other party cannot be denied that this interest is not the benefit obtained by the other party. And because the two sides were good friends at that time, they would lend money to the bank on behalf of each other. The principal and interest agreed upon at the beginning were returned by the other party, and as a result, the other party did not repay the money, and he also had to file a lawsuit to defend his rights. Obviously, the other party violated the repayment obligation and had to bear the corresponding legal responsibility, but the result was to bear the repayment obligation by itself, if the court did not support the interest generated by the bank loan, in the end itself not only had to repay the interest generated by the bank loan, but also had to pay the cost of rights protection, violating the principle of good faith, which was unreasonable. Therefore, the court should divide the act of arbitrage loans from financial institutions for refinancing, and if it is a high-amount refinancing to make profits, it should only support the return of the outstanding principal, but for those who do not make a profit from a high-amount refinancing, that is, the act of flat in and out, they should support the outstanding principal and the interest generated from the bank loan in accordance with the principle of who uses, who benefits, and who repays.
Lawyer reminder
Lawyer Li Yan also reminded that private lending is risky. Although private lending has revitalized the idle funds of society to a certain extent, because private lending is a spontaneous behavior, it has a certain mysteriousness, and there is a certain credit risk due to the borrower's repayment ability and credibility. Especially in social life, many acquaintances such as relatives and friends often do not sign a loan contract when borrowing money, so that when there is a loan dispute, "there is no basis for speaking", and many people do not know how to start to protect their rights and claims. Lawyer Li Yan reminded again that do not borrow money from the bank and then lend it to others! Borrowing money to others should keep evidence such as IOUs, transfer vouchers, chat records, etc. For future use in the event of rights protection.
Mr. Li Yan is a full-time lawyer at Shenzhen Yingke Law Firm. Graduated from the Law School of Sun Yat-sen University, he has rich legal knowledge and practical experience in company, finance, real estate (including small property rights), marriage and family affairs and inheritance. It can accept lecture invitations from enterprises, social groups and relevant units for a long time. Contact number: 13530137604.
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