On the protection of rights and interests from the private loan cases

Jiangsu dongdazhou law firm, Lawyer Jian  Liu 

In July 2015, Wang Yi borrowed 200000 yuan from Li Er for business needs and promised to return it before October 31, 2015. If not, he will pay 5% of the monthly interest. Li Er is a little uneasy about Wang Yi. He asks Wang Yi to provide a guarantee. Wang Yi finds his friend Chen Mou and asks Chen Mou to sign at the guarantor in the debit slip. Li Er transferred the loan of 200000 yuan to Wang Yi by mobile phone on the spot. When the loan was due, Li Er asked Wang Yi to pay back the money. Wang Yi asked Li Er to slow down because of the shortage of money. Later, the phone didn't answer and people couldn't find it, but Li Er didn't retain the evidence that he had asked Wang Yi for the loan. In January 2018, Li Er filed a lawsuit with the court to order Wang Yi to repay the principal of the loan of 200000 yuan, and pay the interest at 5% of the monthly interest rate. Chen, the guarantor, is jointly and severally liable for Wang Yi's above debts.

Wang Yi, Chen Mou entrusts a lawyer to answer the lawsuit. Wang Yi pleads that the loan is a fact, but it has exceeded the two-year limitation of action prescribed by law. Wang Yi has the right not to return the loan, and the interest agreed on in the loan is too high. Chen Yi pleads that the case has exceeded the guarantee period, and Chen Mou does not assume the responsibility to return the loan.

The general principles of the civil law, which came into force on January 1, 1987, stipulates that "the limitation period for the application to the people's court for the protection of civil rights shall be two years" and "the limitation period shall be calculated from the time when the right is known or should be known to have been infringed". The agreed repayment time in this case is October 31, 2015. Wang Yi fails to repay the loan when it is due. At that time, Li Er should know that his rights have been infringed. The effect of litigation starts from November 1, 2015. Of course, the limitation of action can also be interrupted and suspended, but Li Er has no evidence of the interruption and suspension of the limitation of action. Li Er has been suing for more than two years. However, the statute of limitations in the general principles of civil law has been amended by the general principles of civil law, which came into force on October 1, 2017. Article 188 of the general principles of civil law stipulates that the limitation period of action for applying to the people's court for the protection of civil rights is three years. Article 2 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the limitation system of the general principles of the civil law of the people's Republic of China stipulates that "on the date when the general principles of the civil law are implemented, the limitation period has not yet reached two or one year as stipulated in the general principles of the civil law. If the parties claim to apply the provisions of the general principles of the civil law on the limitation period of three years, the people's court shall support them.". Since the limitation of action in this case was less than two years when the general principles of civil law came into force, according to the judicial interpretation, the three-year limitation period should apply, so this case does not exceed the limitation of action.

Article 26 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases stipulates that "if the interest rate agreed by both parties does not exceed 24% of the annual interest rate, and the lender requests the borrower to pay the interest at the agreed interest rate, the people's court shall support it.". In this case, the agreed annual interest rate is 60%, which exceeds the standard prescribed by law, and the part over 24% is not supported.

In this case, there is no agreement on whether the guarantee method is "general guarantee" or "joint and several liability guarantee". According to Article 19 of the guarantee law, if there is no agreement on the guarantee method or the agreement is not clear, the guarantee responsibility shall be borne according to the joint and several liability guarantee.

There is a time limit to the guarantee. If the surety of a joint and several liability suretyship and the creditor have not agreed on the period of suretyship, the creditor shall have the right to demand the surety to bear the suretyship liability within six months from the date of expiration of the period of performance of the independent debt. During the period of suretyship, if the creditor does not require the surety to bear the suretyship liability, the surety shall be exempted from the suretyship liability. In this case, Li Er should ask the guarantor Chen Mou to assume the guarantee responsibility within 6 months after the loan expires, but Li Er did not claim the right from Chen Mou within that time limit, and Chen Mou was exempted from the guarantee responsibility and no longer assumed the obligation of return.

At present, private lending is more active, but there are some characteristics, such as weak legal awareness and weak risk awareness. Private lending seems to be simple, but in fact, it is more complex, and there are many problems. Often, the form of private lending is not standardized, the interest agreement is illegal, and even there are situations such as the interest is deducted in advance when the loan is delivered, the gambling debt, the receipt is not claimed after the repayment, the loan is not recovered, etc.; in the new situation, there are also situations such as false divorce, forged debt, and false litigation for illegal interests. This requires that the participants in social activities must understand the law and usage, and safeguard their legitimate rights and interests. Through the analysis of typical cases of private lending, let the parties know the problems in private lending, in order to maintain the rights and interests to the greatest extent. Lawyer reminds:

1. The creditor shall retain the evidence and claim the right in time;

2. The creditor may require the debtor to provide the real estate, automobile, etc. for mortgage (pay attention to the need for mortgage registration), so as to maximize the protection of their own interests.

3. Sign carefully and be the guarantor.

1. Limitation of action: refers to that the obligee whose civil rights have been infringed fails to exercise his rights within the statutory limitation period. When the limitation period expires, he or she loses the right to appeal to the people's court