Intermediate People's Court of Shenyang City, Liaoning Province
Civil judgments
(2017) Liao 01 Min Zhong No. 12651
Appellant (plaintiff in the original trial): Mr. Ji, male, born on August 30, 1989, Han ethnicity.
Entrusted litigation agent: Zheng Kaiyuan, male, born in January 1982, 30 people, Han ethnicity, Liaoning Contract Law Research Association legal office staff.
Entrusted litigation agent: Chen Ling, female, born on October 30, 1983, Han ethnicity.
Appellee (defendant in the original trial): Chongqing Jinan Microfinance Co., Ltd.
Legal representative: Zou Xuange, the general manager of the company.
Entrusted litigation agent: Qi Fei, lawyer of Liaoning Xinji Law Firm.
Entrusted litigation agent: Lan Jinwei, lawyer of Liaoning Xinji Law Firm.
Appellee (defendant in the original trial): Ping An Puhui Financial Guarantee Co., Ltd.
Legal representative: YONGSUKCHO (Zhao Rongyi), the general manager of the company.
The appellant, Mr. Ji, appealed to this court against the civil judgment of the (2017) Liao 0106 Min Chu No. 10701 of the People's Court of Tiexi District of Shenyang City in connection with the private lending dispute between the appellee Chongqing Jin'an Microfinance Co., Ltd. (hereinafter referred to as "Jin'an Company") and Ping An Puhui Financing Guarantee Co., Ltd. (hereinafter referred to as "Ping An Company"), and after filing the case on November 30, 2017, the court formed a collegial panel to hear the case in accordance with law. The case is now closed.
Mr. Ji's appeal request:
1. Revoke the first-instance judgment and change the judgment to support Mr. Ji's first-instance litigation claims;
2. Order the appellee to bear the litigation costs of the first and second instances.
Facts and reasons:
1. In the first instance, we have calculated 0.1% of the overdue penalty interest and compensatory late fees for violations of laws and regulations. Excluding the interest agreed in the contract, the annual interest rate after the overdue period alone is as high as 36.5%, which violates the provisions of the judicial interpretation on the upper limit of private lending.
2. The invoice is a receipt and payment voucher, and the appellee neither provided a proof of compensation for us in the first instance, nor did it provide an invoice for collecting interest, liquidated damages, etc. from us, and we required the appellee to submit the invoice voucher, which was not recognized in the case of inability to submit.
3. Ping An Company did not propose a calculation method in the first instance, but we only made accounting actuarial calculations and calculation basis reasoning. Our calculation logic should be determined in cases where the appellee is unable to propose a calculation method and make a clear explanation. We have completed all our burdens of proof during the evidence period.
Jinan Company argued that the appellee's deduction of the handling fee was not a consumer act, and the appellant should not be issued with invoice vouchers. The VAT invoice requested by the appellant for overdue penalty interest is not corresponding to the OVERDUE PENALTY invoice because the overdue penalty interest is insufficient, and the overdue penalty interest is an adverse consequence that should be borne by the appellant's breach of contract. The first-instance judgment found that the facts and legal basis were correct, and requested that the original judgment be upheld.
Ping An argued that it agreed with Jinan's opinion.
Mr. Ji filed a complaint with the court of first instance, requesting:
1. Order Jin'an Company and Ping An Company to issue the maximum guarantee contract signed;
2. Order Ping An Company to issue a transfer certificate and corresponding voucher for the performance of the guarantee obligation to Jin'an Company for all principal balances and other arrears owed by Mr. Ji, that is, a certificate of subrogation;
3. Order Jin'an Company to return Mr. Ji's handling fee of 29,700 yuan and issue the invoice voucher for the deduction;
4. Order article 3.5 of the loan contract signed by Jin'an Company to be invalid for 0.1% of the overdue penalty interest date and 8.3, and issue a true loss certificate and the basis for calculating the penalty interest;
5. Order Jinan Company to issue a credit and loan contract 11.3 to issue a VAT invoice for overdue penalty interest;
6. Render the credit and loan contract signed with Jin'an Company invalid 12.4;
7. Order that the 3.1 subrogation late fee of 0.1% per day (36.5% of the year) of the maximum entrusted guarantee contract signed with Ping An Company shall be invalid;
8. Order that the maximum entrusted guarantee contract signed with Ping An Company 5.10(4)(5)(6) is invalid;
9. Order that the maximum entrusted guarantee contract signed with Ping An Company 6.8 is invalid;
10. Order article 8 of the maximum entrusted guarantee contract signed with Ping An Company to be invalid;
11. Order article 9.3 of the maximum entrusted guarantee contract signed with Ping An Company to be invalid;
12. Order Ping An Company to issue a VAT invoice with overdue penalty interest in accordance with the maximum amount entrusted to the guarantee contract 11.3;
13. Order article 6 of the supreme counter-guarantee mortgage contract signed with Ping An Company to be invalid in its entirety;
14. Render Clause 8.2 of the maximum amount counter-guarantee contract signed with Ping An Company invalid;
15. Render Article 9.17 of the maximum amount counter-guarantee mortgage contract signed with Ping An Company invalid;
16. Render Article 9.19 of the maximum counter-guarantee contract signed with Ping An Company invalid;
17. Render Article 12.4 of the maximum amount counter-guarantee mortgage contract signed with Ping An Company invalid;
18. Order Mr. Ji to confirm the principal amount, remaining principal and interest of the loan with Jinan Company and Ping An Company and adjust the actual economic ability of the debtor to return the principal in installments of 10 years, to the actual contributor and confirm the interest;
19. Jin'an Company and Ping An Company shall bear the litigation costs.
The court of first instance found the facts:
On July 21, 2016, Mr. Ji and Jin'an Company signed the "Credit and Loan Contract", stipulating that Jin'an Company would provide Mr. Ji with a loan of 1,065,000 yuan of credit line; the borrower was required to pay a loan handling fee to the lender for each loan, which was charged at 3% of the actual loan amount and paid in one lump sum on the date of issuance of the loan; if the loan was overdue and no full repayment by the guarantor occurred, the lender would charge the borrower a overdue penalty interest of 0.1% on a daily basis from the date of overdue If the borrower fails to repay the loan before 24:00 on the agreed normal repayment date in accordance with the provisions of Article 5 of this contract, it shall be deemed to be overdue. Mr. Ji actually applied for a loan amount of 990,000 yuan from Jin'an Company, with a repayment period of 36 months and an annual interest rate of 9.2%. On July 25, 2016, Jinan Company deducted a handling fee of 29,700 yuan and actually transferred 960,300 yuan to Mr. Ji's account.
On July 21, 2016, Mr. Ji signed the Contract of Maximum Entrustment guarantee with Ping An Company to provide joint and several guarantee liability for the Credit And Loan Contract, and the scope of the guarantee guarantee includes the principal amount of the loan, interest, penalty interest, liquidated damages, and the cost of realizing the claim (including but not limited to all expenses such as Cui fees, lawyer fees, litigation costs, notary fees, execution costs, etc.), and the guarantee period is two years, calculated from the last repayment date of the loan contract. Ping An Company collects a guarantee fee of 3,960 yuan per month from Mr. Ji (the actual loan amount × 0.4%), and after Ping An Company performs its guarantee obligation, Mr. Ji shall pay a compensatory late fee to Ping An Company on the basis of the amount of compensation and at a daily rate of 1% from the date of performance of the guarantee obligation. On the same day, Mr. Ji signed the Maximum Amount Counter-Guarantee Mortgage Contract with Ping An Company, and mortgaged his house located at No. 158-11 (1-18/19-4) Nanyanghu Street, Hong District, to Mr. Ji to provide a counter-guarantee for the Maximum Amount Entrusted Guarantee Contract, with a mortgage period from July 21, 2016 to July 21, 2021.
After the contract was signed, Mr. Ji failed to repay the principal and interest in full as agreed, believing that the contract provided by Jin'an Company and Ping An Company was a standard contract and that there were violations of laws and regulations, so Mr. Ji sued the court.
The court of first instance held that Mr. Ji's signing of the Credit and Loan Contract with Jin'an Company, the Signing of the Maximum Entrusted Guarantee Contract and the Maximum Amount Counter-Guarantee Mortgage Contract with Ping An Company were all expressions of true intention of the parties to the contract, and did not violate the mandatory provisions of the law, were legal and valid, and all parties to the contract should perform their respective obligations in accordance with the contract.
The first point of contention in this case was whether there was a legal basis for Mr. Ji's request to order some of the contract terms invalid. Mr. Ji's claims nos. 4, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16 and 17 all claim that some of the terms of the contract are invalid. According to the provisions of the Contract Law of the People's Republic of China, if the standard terms have the circumstances provided for in Articles 52 and 53 of this Law, or if the party providing the standard terms exempts it from liability, increases the liability of the other party, or excludes the main rights of the other party, the provision shall be invalid. The contract involved in this case does not exist in the circumstances stipulated in 52 and 53, and the invalid clause claimed by Mr. Ji does not exempt Jin'an Company and Ping An Company from liability, aggravate Mr. Ji's liability, and exclude Mr. Ji's main rights, so Mr. Ji's proposal to sign the contract is not his true intention, and there is no legal basis for the claim that some clauses should be invalid. In addition, the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases also provides corresponding provisions on the invalidity of private lending contracts, and there is no corresponding statutory situation in the contract involved in this case. Item 4 of Mr. Ji's litigation request requires Jin'an Company and Ping An Company to issue actual loss certificates and penalty interest calculation basis, this case is a private lending dispute, there are relevant laws and regulations to adjust the borrower's collection of interest and penalty interest, the contract involved in this case is specific and clear about the penalty interest agreement, does not exceed the relevant laws and regulations, and does not need to issue an actual loss certificate.
The second focus of the dispute in this case was whether Mr. Ji had the right to claim that Jin'an Company and Ping An Company issue the Maximum Insurance Contract and require them to issue corresponding VAT invoices. Item 1 of Mr. Ji's litigation claim is a contract signed between Jin'an Company and Ping An Company, which is not a contract involved in this case and has nothing to do with this case, and Mr. Ji has no right to request it. Regarding Item 2 of Mr. Ji's claim, during the trial, Ping An Company had submitted corresponding evidence on its performance of its subrogation obligations, which could prove that Ping An Company had indeed fulfilled its subrogation obligations. Items 3, 5 and 12 of the litigation claims all require Jin'an Company and Ping An Company to issue invoices, and failing to issue invoices in accordance with regulations is an act of violating the Invoice Management Law, which belongs to the administrative legal relationship and does not fall within the scope of the people's court's acceptance of civil litigation, so it is not supported according to law.
The third point of contention in this case was the basis for Mr. Ji's request to confirm the principal amount of the loan, the remaining principal and interest, and the refund handling fee of RMB29,700.
The calculation method of the remaining principal amount submitted by Mr. Ji to the court of first instance has been deducted from the principal fee, so Mr. Ji's request for return has no basis, and the court of first instance does not support it. Item 18 of Mr. Ji's litigation requested confirmation of the principal, remaining principal and interest of the loan, but according to the evidence submitted by him, the amount obtained was calculated by himself, and the guarantee fees and overdue interest he should bear were calculated as principal, so the amounts he claimed were inaccurate, and in addition, Mr. Ji did not recognize the calculation method submitted by Ping An Company in the process of cross-examination, and Mr. Ji failed to provide corresponding evidence to prove his litigation claim, so the court of first instance did not confirm the request. Its claim for payment in installments had no factual basis and was not upheld by the court of first instance.
In summary, Mr. Ji's claims have no factual or legal basis, and the court of first instance did not support them. In accordance with Articles 196 and 207 of the Contract Law of the People's Republic of China, Article 14 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, and Article 90 of the Interpretation of the Supreme People's Court on the Application of the < of the Civil Procedure Law of the People's Republic of China >, the judgment is as follows: Mr. Ji's litigation claim is rejected. The case acceptance fee is 345 yuan, which is borne by Mr. Ji.
In the second instance, the parties did not submit new evidence. The facts ascertained by this court are consistent with those determined by the court of first instance.
This court held that the three contracts signed by the parties in this case were all expressions of the true intentions of the parties, did not violate the mandatory provisions of laws and administrative regulations, were legal and valid, and were binding on the parties.
Regarding the validity of the clauses on interest and penalty interest in the contract, the contract in this case stipulates that the equal principal and interest will be repaid in 36 installments, the interest on the loan shall not exceed the interest rate stipulated by laws and judicial interpretations, and the penalty interest shall be calculated according to the standard of 0.1% per day for the principal and interest due in the current period. Jin'an Company submitted evidence to prove that ping an company compensated Mr. Ji for 121 days overdue penalty interest of 2324.08 yuan, so the penalty interest stipulated in the contract involved in the case did not exceed the relevant laws and judicial interpretations, and the appellant's claim that the contract was invalid lacked factual and legal basis, and this court did not support it.
Regarding Mr. Ji's request for Jin'an Company and Ping An Company to issue invoices, the failure to issue invoices in accordance with the regulations is a violation of invoice management regulations, which should be determined and punished by the tax authorities, belongs to the administrative legal relationship, does not fall within the scope of civil case trial, and the court of first instance did not support it and is not improper.
Regarding Mr. Ji's request for confirmation of the principal amount of the loan, the remaining principal and interest and the refund of the handling fee, because Mr. Ji did not fulfill all the repayment obligations on time, there was no basis for his request to return the handling fee. As for the liability that Mr. Ji should bear in accordance with the provisions of the law and the contract, because the appellee had filed a lawsuit against Mr. Ji at the Hunnan District People's Court of Shenyang City, it could be resolved together in the case.
The second-instance people's court shall conduct a trial around the parties' appeal requests, so the parts that the parties have not made a request will no longer hear.
In summary, the appellant's appeal request is not established. In accordance with the provisions of article 170, paragraph 1, subparagraph (1) of the Civil Procedure Law of the People's Republic of China, this court rendered the following judgment:
The appeal was dismissed and the original judgment was upheld.
The acceptance fee for the second-instance case is 543 yuan, which is borne by Mr. Ji.
This judgment is final.
Presiding Judge Gao Yue
Judge Zou Mingyu
Judge Liu Xiaodan
February 24, 2018
Judge's assistant Ren Ling
Clerk Wang Xingdan
The relevant law on which the judgment in this case is based
Article 170 of the Civil Procedure Law of the People's Republic of China, the second-instance people's courts of the People's Republic of China handle appeal cases after trial and are handled separately in accordance with the following circumstances: (1) where the facts identified in the original judgment or ruling are clear and the law is correct, the appeal is rejected by way of judgment or ruling, and the original judgment or ruling is upheld; (2) where the original judgment or ruling determines that the facts are wrong or the law is wrong, the judgment or ruling is to be changed, revoked or modified in accordance with law; (3) where the basic facts are determined to be unclear in the original judgment, the original judgment is ruled to revoke the original judgment. (4) Where the original judgment omitted the parties or made a judgment in violation of legal procedures, such as an unlawful default judgment, it is ruled to revoke the original judgment and remand it to the first-instance people's court for a new trial. Where, after the first-instance people's court has rendered a judgment on a case remanded for retrial, and the parties raise an appeal, the second-instance people's court must not remand it for retrial.