(Adopted at the 1655th meeting of the Judicial Committee of the Supreme People's Court on June 23, 2015, and amended for the first time according to the Decision of the Supreme People's Court on Amending the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Private Loan Cases adopted at the 1809th meeting of the Judicial Committee of the Supreme People's Court on August 18, 2020, and adopted at the 1823rd meeting of the Judicial Committee of the Supreme People's Court on December 23, 2020) The Second Amendment to the Decision of the Supreme People's Court on Amending the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Trade Union Law of the People's Republic of China in Civil Trials and Other Twenty-seven Civil Judicial Interpretations
In order to correctly hear civil loan disputes, these Provisions are formulated in accordance with the provisions of the Civil Code of the People's Republic of China, the Civil Procedure Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China and other relevant laws, and in combination with trial practice.
Article 1 The term "private lending" as mentioned in these Provisions refers to the financing between natural persons, legal persons and unincorporated organizations.
These Provisions shall not apply to disputes arising from the granting of loans and other related financial businesses of financial institutions and their branches established with the approval of the financial supervision department.
Article 2 When bringing a civil loan lawsuit to the people's court, a lender shall provide evidence of creditor's rights such as the receipt of loan, the receipt, the IOU, and other evidences that can prove the existence of the legal relationship between loan and loan.
The people's court shall accept the civil loan lawsuit brought by the party holding the creditor's rights certificate, such as the loan receipt, receipt and IOU, which does not specify the creditor. The defendant raised a factual defense against the plaintiff's creditor qualification, and the people's court ruled to dismiss the lawsuit if it found that the plaintiff did not have the creditor qualification after examination.
Article 3 If the place of performance of the contract has not been agreed or clearly agreed upon by both parties, and no supplementary agreement has been reached afterwards, and cannot be determined according to the relevant terms of the contract or the transaction customs, the place of performance of the contract shall be the place where the party accepting the currency is located.
Article 4 A guarantor shall provide a guarantee of joint and several liability for the borrower. If the lender only sues the borrower, the people's court may not add the guarantor as a joint defendant; If the lender only sues the guarantor, the people's court may add the borrower as the co-defendant.
The guarantor provides a general guarantee for the borrower. If the lender only sues the guarantor, the people's court shall add the borrower as the co-defendant; If the lender only sues the borrower, the people's court may not add the guarantor as the co-defendant.
Article 5 After filing a case, if the people's court finds that the private lending act itself is suspected of illegal fund-raising and other crimes, it shall rule to dismiss the prosecution and transfer the clues and materials suspected of illegal fund-raising and other crimes to the public security or procuratorial organ.
If the public security or procuratorial organ refuses to file the case, or cancels the case after filing the case for investigation, or the procuratorial organ makes a decision not to prosecute, or the effective judgment of the people's court determines that it does not constitute a crime such as illegal fund-raising, and the party brings a lawsuit to the people's court with the same fact, the people's court shall accept it.
Article 6 After filing the case, if the people's court finds clues and materials suspected of illegal fund-raising and other crimes that are related to but not the same fact as the case of private lending disputes, the people's court shall continue to hear the case of private lending disputes, and transfer the clues and materials suspected of illegal fund-raising and other crimes to the public security or procuratorial organ.
Article 7 The basic facts of a civil loan dispute must be based on the trial results of a criminal case. If the criminal case has not been concluded, the people's court shall rule to suspend the proceedings.
Article 8 If the borrower is suspected of committing a crime or is found guilty by an effective judgment, and the lender brings a lawsuit requesting the guarantor to bear civil liability, the people's court shall accept it.
Article 9 A loan contract between natural persons may be deemed to be concluded if one of the following circumstances occurs:
（1） In case of cash payment, from the time the borrower receives the loan;
（2） For payment in the form of bank transfer, online electronic remittance, etc., from the time the funds reach the borrower's account;
（3） If the bill is delivered, the borrower has obtained the right to the bill according to law;
（4） Where the lender authorizes the borrower to control the specific capital account, the borrower obtains the actual control of the account;
（5） When the lender provides the loan in other ways agreed with the borrower and actually performs the loan.
Article 10 A private loan contract concluded between legal persons, non-legal persons and between them for production and business purposes shall be supported by the people's court if the parties claim that the private loan contract is valid, except for the circumstances specified in Articles 146, 153, 154 of the Civil Code and Article 13 of these Provisions.
Article 11 Legal persons or organizations without legal personality raise funds from employees in the form of loans within their own units for the production and operation of their own units, and there are no circumstances specified in Articles 144, 146, 153, 154 of the Civil Code and Article 13 of these Provisions. If the parties claim that the private loan contract is valid, the people's court shall support it.
Article 12 If the borrower or lender's lending behavior is suspected of a crime, or the effective judgment determines that it constitutes a crime, and the parties file a civil lawsuit, the private lending contract is not of course invalid. The people's court shall, in accordance with the provisions of Articles 144, 146, 153, 154 of the Civil Code and Article 13 of these Provisions, determine the validity of the private loan contract.
If the guarantor claims not to bear civil liability on the ground that the borrower or lender's borrowing behavior is suspected of a crime or has been determined to constitute a crime by an effective judgment, the people's court shall determine the civil liability of the guarantor according to law according to the effectiveness of the private lending contract and the guarantee contract and the fault degree of the parties.
Article 13 Under any of the following circumstances, the people's court shall determine that a private loan contract is invalid:
（1） Borrowing loans from financial institutions for loan transfer;
（2） Lending funds obtained by borrowing from other profit-making legal persons, raising funds from employees of the unit, or illegally absorbing deposits from the public;
（3） The lender who has not obtained the loan qualification according to law provides loans to unspecified social objects for the purpose of profit;
（4） The lender knows or should know that the borrower's loan is used for illegal and criminal activities and still provides the loan;
（5） Violating the mandatory provisions of laws and administrative regulations;
（6） Violating public order and good customs.
Article 14 If the plaintiff brings a civil borrowing and lending lawsuit based on the receipt, receipt, IOU and other credit documents, and the defendant raises a defense or counterclaim based on the basic legal relationship, and provides evidence to prove that the credit dispute is not caused by the civil borrowing and lending behavior, the people's court shall try it according to the facts of the case and the basic legal relationship.
The provisions of the preceding paragraph shall not apply to the creditor's rights and debts agreement reached by the parties through mediation, settlement or liquidation.
Article 15 The plaintiff shall file a civil loan lawsuit only on the basis of the receipt, receipt, IOU and other credit documents. If the defendant defends that the loan has been repaid, the defendant shall provide evidence to prove its claim. After the defendant provides corresponding evidence to prove its claim, the plaintiff shall still bear the burden of proof for the existence of the loan relationship.
If the defendant's defense of the loan has not actually occurred and can make a reasonable explanation, the people's court shall make a comprehensive judgment on whether the fact of the loan has occurred in combination with the amount of the loan, the delivery of the money, the economic capacity of the parties, the local or inter-party transaction mode, the transaction habits, the changes of the parties' property, and the testimony of witnesses and other facts and factors.
Article 16 The plaintiff shall file a civil loan lawsuit only on the basis of the transfer certificate of the financial institution. If the defendant defends that the transfer is to repay the previous loans or other debts of both parties, the defendant shall provide evidence to prove its claim. After the defendant provides corresponding evidence to prove his claim, the plaintiff shall still bear the burden of proof for the establishment of the loan relationship.
Article 17 According to the provisions of Article 174, 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, if the plaintiff who has the burden of proof refuses to appear in court without justified reasons, and the existing evidence cannot confirm the main facts of the case, such as the loan behavior, loan amount, payment method, etc., the people's court will not recognize the facts claimed by the plaintiff.
Article 18 If the people's court finds any of the following circumstances in the trial of a civil loan dispute case, it shall strictly examine the facts such as the reason, time, place, source of funds, delivery method, flow direction of funds, and the relationship and economic situation between the two parties, and comprehensively determine whether it is a false civil lawsuit:
（1） The lender obviously does not have the ability to lend;
（2） The facts and reasons on which the lender sued are obviously inconsistent with common sense;
（3） The lender is unable to submit the creditor's rights certificate or the submitted creditor's rights certificate may be forged;
（4） Both parties have participated in civil lending litigation for many times within a certain period of time;
（5） The parties refuse to appear in court to participate in the litigation without justified reasons, and the entrusted agent is unclear or inconsistent with the loan facts;
（6） There is no dispute between the two parties about the fact of the loan or the defense is obviously inconsistent with common sense;
（7） The borrower's spouse or partner or other creditors of the outsider put forward a factual objection;
（8） The parties have transferred their property at a low price in other disputes;
（9） The parties improperly waive their rights;
（10） Other situations where there may be false private lending litigation.
Article 19 The people's court shall not grant the plaintiff's application for withdrawal of the lawsuit, which is found to be a false private loan lawsuit, and shall, in accordance with the provisions of Article 112 of the Civil Procedure Law, reject the plaintiff's application.
If a participant in the proceedings or any other person maliciously creates or participates in a false lawsuit, the people's court shall, in accordance with the provisions of Articles 111, 112 and 113 of the Civil Procedure Law, impose a fine or detention according to law; If the case constitutes a crime, it shall be transferred to the judicial organ with jurisdiction for criminal responsibility.
If a unit maliciously manufactures or participates in a false lawsuit, the people's court shall impose a fine on the unit, and may impose a fine or detention on the main person in charge or the person directly responsible; If the case constitutes a crime, it shall be transferred to the judicial organ with jurisdiction for criminal responsibility.
Article 20 If another person signs or seals on the receipt, receipt, IOU and other credit documents or the loan contract, but fails to indicate the identity of the guarantor or bear the suretyship liability, or cannot be presumed to be the guarantor through other facts, and the lender requests him to bear the suretyship liability, the people's court will not support it.
Article 21 The borrower and the borrower form a loan relationship through the online loan platform. The provider of the online loan platform only provides media services. The people's court will not support the request of the parties to assume the guarantee liability.
The people's court shall support the lender's request that the provider of the online loan platform undertake the guarantee liability if the provider of the online loan platform expressly or has other evidence to prove that it provides guarantee for the loan through the web page, advertisement or other media.
Article 22 If the legal representative of a legal person or the person in charge of an organization without legal personality signs a private loan contract with the lender in the name of the unit, and there is evidence to prove that the loan item is used by the legal representative or the person in charge personally, and the lender requests to list the legal representative or the person in charge as a co-defendant or a third party, the people's court shall grant permission.
If the legal representative of a legal person or the person in charge of an organization without legal personality signs a private loan contract with the lender in the name of an individual, and the loan item is used for the production and operation of the unit, and the lender requests the unit and the individual to jointly bear the responsibility, the people's court shall support it.
Article 23 If the parties conclude a sales contract as the guarantee of a private loan contract, and the borrower cannot repay the loan after the loan expires, and the lender requests to perform the sales contract, the people's court shall hear the case in accordance with the legal relationship of private loan. The people's court shall allow the parties to change their claims according to the court proceedings.
After the judgment made in accordance with the legal relationship of private lending takes effect, if the borrower fails to perform the monetary debt determined in the effective judgment, the lender may apply for auction of the subject matter of the sales contract to repay the debt. The borrower or lender has the right to claim repayment or compensation for the difference between the auction proceeds and the principal and interest payable.
Article 24 The people's court shall not support the lender's claim for payment of interest if the borrower and the borrower have not agreed on the interest.
The people's court will not support the loan between natural persons with unclear interest agreement and the lender's claim for payment of interest. Except for the loan between natural persons, if the loan interest is not agreed by both parties and the lender claims the interest, the people's court shall determine the interest based on the contents of the private loan contract and the local or parties' transaction methods, transaction habits, market quoted interest rates and other factors.
Article 25 If the lender requests the borrower to pay the interest at the interest rate agreed in the contract, the people's court shall support it, except that the interest rate agreed by both parties exceeds four times the quoted rate of the one-year loan market at the time of the establishment of the contract.
The "one-year loan market quoted rate" mentioned in the preceding paragraph refers to the one-year loan market quoted rate published monthly by the National Interbank Funding Center authorized by the People's Bank of China since August 20, 2019.
Article 26 The amount of loan specified in the receipt of loan, receipt, IOU and other credit documents is generally recognized as the principal. If interest is deducted from the principal in advance, the people's court shall recognize the amount actually lent as the principal.
Article 27 After the settlement of the principal and interest of the loan in the early period, both parties shall include the interest in the principal of the loan in the later period and reissue the credit certificate. If the interest rate in the early period does not exceed four times the quoted interest rate of the one-year loan market at the time of the establishment of the contract, the amount stated in the reissued credit certificate can be recognized as the principal of the loan in the later period. The interest in excess of the part shall not be recognized as the principal of the later loan.
According to the calculation in the preceding paragraph, if the sum of the principal and interest payable by the borrower after the expiration of the loan period exceeds the sum of the interest for the entire loan period calculated on the basis of the original loan principal and four times the market quoted interest rate of the one-year loan at the time of the establishment of the contract, the people's court will not support it.
Article 28 If both parties have an agreement on the overdue interest rate, the agreement shall prevail, but it shall not exceed four times the market quoted interest rate of the one-year loan at the time of the establishment of the contract.
If the overdue interest rate is not agreed or the agreement is unclear, the people's court may handle it according to different circumstances:
（1） If neither the interest rate within the loan period nor the overdue interest rate is agreed, and the lender claims that the borrower shall bear the liability for default of overdue repayment with reference to the interest calculated by the current one-year loan market quoted interest rate standard from the date of overdue repayment, the people's court shall support it;
（2） The people's court shall support the lender's claim that the borrower should pay the interest during the period of capital occupation at the interest rate within the borrowing period from the date of overdue repayment, if the interest rate within the borrowing period is agreed but the overdue interest rate is not agreed.
Article 29 Where the lender and the borrower have agreed both the overdue interest rate and the liquidated damages or other expenses, the lender may choose to claim the overdue interest, liquidated damages or other expenses, or both, but the people's court will not support the part that exceeds four times the market quoted interest rate of the one-year loan at the time of the establishment of the contract.
Article 30 The borrower may repay the loan in advance, unless otherwise agreed by the parties.
If the borrower repays the loan in advance and claims to calculate the interest according to the actual loan term, the people's court shall support it.
Article 31 After the implementation of these Provisions, the People's Court shall apply these Provisions to the newly accepted cases of civil loan disputes of first instance.
For the civil loan case of first instance newly accepted after August 20, 2020, where the loan contract was established before August 20, 2020, the people's court should support the parties' request to apply the judicial interpretation at that time to calculate the interest part from the establishment of the contract to August 19, 2020; The interest from August 20, 2020 to the date of repayment of the loan shall be calculated according to the interest rate protection standard of this provision at the time of the lawsuit.
After the implementation of these Provisions, if the relevant judicial interpretations made by the Supreme People's Court are inconsistent with these Provisions, these Provisions shall prevail.