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The Judge Said That The "Alienation" Of Private Lending Caused Difficulties In The Application Of Law.

2011/11/14 10:20:00 22

Judges' Difficulties In Applying "Alienation" To Private Lending

Small and medium-sized private lending disputes have grown rapidly, and some illegal debts have been legalized in the form of IOUs.

Judge: the application of "alienation" in private lending is difficult.

At the beginning of 2011, the credit of banks was shrinking and the financing of SMEs was difficult.

Private credit

There are numerous disputes related to the surge.

Recently, the Supreme People's Court issued several opinions on giving full play to the role of judicial functions in strengthening and innovating social management, pointing out that in particular, it is necessary to properly hear private lending disputes involving small and medium-sized enterprises in accordance with the law.

After thorough investigation of several courts in the Yangtze River Delta and the Pearl River Delta region, the reporters found that the courts involved small and medium-sized enterprises this year.

To loan

The cases have increased significantly, while private lending has increased.

"Alienation"

The question also worries the judges.

The number of cases doubled.

In 2010, the people's Court of Huqiu District, Suzhou City, Jiangsu Province, handled 16 cases involving private lending disputes involving small and medium-sized enterprises, involving a total of more than 2400 yuan. And since 2011, the hospital has accepted 52 such cases, amounting to about 81000000 yuan.

The number of cases and related cases increased by more than 3 times.

The situation is similar to the first people's Court of Dongguan city of Guangdong province and the people's Court of Cixi City, Zhejiang province.

The first court of Dongguan collects 1415 cases of private lending disputes, which involve a large number of small and medium-sized enterprises or funds eventually flowing to small and medium-sized enterprises.

Han Ruoming, President of the two court of the Huqiu court of the people's court, said that disputes involving small and medium-sized enterprises in private lending appeared in large numbers. Apart from the policy adjustment, small and medium enterprises themselves are relatively small in scale, weak in risk resistance, blindly undertaking business, lack of risk control and illegal lending.

Han Ruoming said that in order to properly handle such cases, protect the legitimate rights and interests of both parties and maintain the order of the market economy, the Huqiu Court emphasized three "strictness" in the trial, that is, strict adoption of safeguards, strict examination of evidence and strict screening of usury cases.

"For private lending activities that may involve financial illegality such as usury, the court shall strengthen the examination of the authenticity and legality of the loan, and strengthen the examination of the borrowing facts under the circumstances that there are doubtful points in the IOUs, so that it is not easy to judge."

Han Ruoming said that the court did not protect the illegal acts of high interest rates and advance interest deduction.

Lending money in the name of usury

In the case of private lending involving small and medium-sized enterprises, how many of them belong to illegal lending activities? The judges interviewed said that in the cases currently accepted, informal private lending accounted for the majority, and "alienation" cases appeared in large numbers.

Dongguan's first court judge Gui Shan Shan, for example, recently filed a lawsuit against 27 private lending cases in Liaobu court in the court, involving a total amount of about 2700000 yuan, some of which were small and medium-sized enterprises.

Tang Zhiwei, an executive judge of the Cixi court, pointed out that some illegal debts were legalized in the form of IOU and entered the enforcement procedure after litigation.

In the course of execution, the judge found that the amount of arrears was actually high interest on the basis of the reaction of the executed person.

Some interest payments have far exceeded the loan principal amount recorded in the debit note. Although some of the actual interest payments are not large, interest is recorded in the form of principal in the form of rewriting the loan.

According to the introduction, in some cases in the first court of Dongguan, the plaintiff can provide more standardized and relatively fixed contents.

In addition to handwriting, borrowers, loan amount, borrowing date and other conventional handwriting, all other parts of the IOU appear in the form of a print version. Some of the loan contracts even set up house mortgages or provide guarantor as a guarantee.

Some defendants argued that the plaintiff was usurious in the trial.

In the case of people's Court of Wuxing District of Huzhou city in Zhejiang Province, at least more than half of the agreed lending rates exceed 4 times the interest rate of the bank at the same time, and usury has become a major feature of private lending.

Hu Xiaofang, vice president of the two court of the court of Wuxing, said that these "alienated" private lending had no clear legal basis, and the facts were difficult to find.

Standardized and orderly management of private lending

"We must not legalize illegal claims through trial procedures."

Gui Shanshan suggested that the courts should increase their powers of investigation in order to conceal their illegal purposes in the name of private lending. At the same time, they should play a joint role in pferring private lending disputes involving illegal fund-raising or suspected fraudulent crimes to public security organs, and jointly crack down on illegal activities such as usury and so on, and standardize the purge of private lending.

In the trial, Han Ruoming found that many illegal private lending is caused by the ignorance of China's financial legal system by small and medium-sized enterprises or individuals.

He believed that, first, we should strengthen publicity of the financial legal system, enhance the consciousness of lawful operation and lawful lending of small and medium-sized enterprises, and educate citizens and enterprises to raise funds in accordance with the law and ensure them prudently.

Han Ruoming suggested that a sound industry regulation be established.

We should standardize the industry access mechanism, rationally determine the minimum amount of registered capital of Guarantee Corporation and small loan companies, strengthen the daily supervision mechanism, and promptly investigate and deal with the outstanding problems of over scope operation, illegal storage, lending and illegal collation.

"We must resolutely clamp down on illegal businesses and financial companies with the nature of" underground banks "and earnestly safeguard financial security and social stability.

"The total number of private lending cases handled by the Cixi court in the past 3 years has reached over 5000, involving a capital of more than ten billion yuan, involving a large number of small and medium-sized enterprises, most of which are non-standard in terms of delivery, pfer, borrowing and repayment arbitrarily.

At the same time, although the high interest law is not protected, the hidden high interest is real. Therefore, it is imperative to further legislate private lending and private financing.

Tang Zhiwei suggested that relevant state departments should issue relevant laws and regulations and management system as soon as possible, so as to promote the standardization and order of private lending management.