Legal knowledge wants a place: Civilian leasehold contract also belongs to one of objects that contract law adjusts, basis " contract law of People's Republic of China " fiftieth the regulation of 8, the contract disables or by cancel hind, because of the property that this contract acquires, ought to give return still; Cannot return return or not was necessary to return those who return, ought to compensation of convert into money. The one party that has fault ought to recoup the loss that the other side gets accordingly, both sides has fault, ought to assume corresponding legal responsibility severally. Accordingly, if folk is leasehold,the contract is affirmed to be invalid contract, lender and borrower should bear the legal consequence of the following respects:
One, borrower need is returned to lender return loan principal.
According to contract law fiftieth 8 regulation, although the civilian leasehold contract that both sides concludes is invalid, but because fulfill the property that this contract place acquires to need to return,return, return returning property is not break a contact and remove the law that contract place produces is sequential, not applicable also without fault principle, no matter party signs a contract to whether have fault to ordering, because did not have legal basis,acquiring property according to invalid contract however is, ought to return this property so return the other side, but to belongings return still, it is with this content is in jural and can return in fact still be premise condition, return for example those who return is a car, but the car had been marred, below this kind of circumstance can convert into money is returned still. Because civilian leasehold contract is mark with money, reason is returned return loan not to exist jural and in fact cannot return still. So if invalid loan contract has not fulfill, fulfill no longer, if invalid and leasehold contract has been fulfilled, criterion borrower ought to be returned to lender return borrow or lend money.
2, lender need borrower is returned return interest.
Return return reason to be mixed actually afore-mentioned truths of the a bitth are just the same. After civilian leasehold contract is invalid, the property that acquires accordingly ought to give return still. But here is theoretic analysis only, because of the contract invalid need compensates for losing in solid Wu, it is the interest that by standard loan interest rate loss of computational accrual computation has touching buckling bilateral perhaps agreement commonly in the range that protects higher in law again, it is the accrual loss that assumes an in part each mostly, the others exceeds a share, must return still.
3, recoup a loss according to bilateral fault.
After civilian leasehold contract is maintained to be invalid contract, relevant provision has legal effectiveness no longer inside the contract, party is bilateral can seek redress loss. Recouping a loss is to conclude a treaty the requirement of negligence liability, conclude and walk on of invalid civilian loan contract bring a loss to party soon, show lender suffers the legal interest loss that law protects commonly, if have other loss or borrower also has losing, can advocate compensation lawfully. Affirm loss number is average the interest income that agrees in the contract according to both sides, next according to bilateral fault size, partake in proportion by both sides, be to assume losing each like solid Wuzhongyi the scale of 50% . But, if conventional accrual is inferior, general support pays accrual the loss to lender by standard loan interest rate, the judge is in the freedom with decide loss respect is to have certain reduces quantity advantageous position.
About folk for better understanding leasehold contract is maintained to be after disabling, the capital that the contract agrees and accrual processing problem are in in judicatory solid Wu specific and applicable, the author shares a relevant solid Wu case to consult for everybody to everybody now.
Brief introduction of details of a case
Accuser Chen Shenghua appeals to say: The accused Chen Hailin is the accused the operator of inn of 4 gardens sale, the accused Chen Hailin ever needed with managing capital have enough to meet need at the beginning of December 2014 for, the 4 gardens sale that sells inn and the accused proper motion to manage through 3 electropositive heads in succession sets POS machine to cover showing pattern inside inn, xiang Yuan accuses loan RMB 58000 multivariate.
Both sides affirmed to Zhang on December 10, 2014 after, sign " loan agreement " RMB of clear accuser loan gives the accused 58000 yuan Chen Hailin, agree lunar interest is the corresponding period of Chinese people bank accrual of congener payment for goods is fourfold; Loan time comes to stopped on January 10, 2015 since December 10, 2014, the day that the accused Chen Hailin expires in loan is one-time repay all loan give prosecutor, accrual of exceed the time limit leads fourfold compound interest to accumulate computation by annual interest of Chinese people bank; If produce suit, court of people of You Mou division administer, the cost that litigant place produces (include a retaining fee) by the accused Chen Hailin is assumed etc. The accused Chen Hailin issue receipt for a loan to affirm at the same time already got afore-mentioned sum borrow or lend money 58000 yuan. But the accused of after the event was like restrict reimbursement, accuser Ceng Duo second to the accused dun not if really. For this, the request sentences Chen Hailin of your the accused, 4 gardens to sell store instantly refund 58000 yuan, accrual of exceed the time limit and retaining fee.
The judgment wants a place
The court thinks via cognizance: Although loan of Chen Shenghua of old sea Linxiang, signed " loan agreement " and issued " reimbursement specification " , but because Chen Shenghua is to use bank credit card to pass 4 gardens to sell inn, 3 this world,computer sets Pos machine to cover inside sale inn show means to pay borrow or lend money to Chen Hailin, inn of afore-mentioned 4 gardens sale, 3 in relief computer sell inn to the department is managed by Chen Hailin or be appointed, and bilateral course affirms loan amount to Zhang, reason Chen Hailin knows Chen Shenghua is to cover beforehand apparently take credit card capital to be used at loan, basis " top people court about hearing civilian leasehold case applicable law the regulation of a certain number of problems " the 14th (one) : ? Φ of river of ㄔ of dome of heir of of fertile bluff compares aluminous Xing Yue of the Xing that boil smile Dou Huanlu of unoccupied place ? of Piao of virtuous (one) set take fund of financial orgnaization credit usury turns lend borrower, and borrower knows beforehand or ought to know; ... " regulation, credit chuck is used to take cash to have borrow or lend money between Chen Shenghua and Chen Hailin, and the basis is bilateral " loan agreement " , conventional accrual is bank the corresponding period congener loan interest is fourfold, belong to set take fund of financial orgnaization credit usury turns the case that lends borrower, accordingly, this academy thinks between both sides sign " loan agreement " , " reimbursement specification " should belong to invalid.
The place before be like is narrated, as a result of both sides between " loan agreement " , " reimbursement specification " all disable, invalid contract or by the contract of cancel from only then without legal sanction, chen Shenghua affirms when front courtyard careful already paid 58000 yuan to give Chen Hailin, basis of reason Chen Hailin " loan agreement " obtained loan RMB should give 58000 yuan return still. About the issue of interest of exceed the time limit of this case. The place before be like is narrated, although be signed as a result of both sides " loan agreement " and " reimbursement specification " invalid, but Chen Hailin took up actually " loan agreement " , " reimbursement specification " in conventional capital 58000 yuan, accordingly, the sun from reimbursement of exceed the time limit rose old sea Lin Ying on January 11, 2015 namely press Chinese people bank one year period circulating fund is fiducial interest rate pays exceed the time limit to pay to Chen Shenghua accrual.
Although both sides is signed " loan agreement " , " reimbursement specification " all agreed litigant expenses and lawyer charge all are assumed by Chen Hailin, and offer according to Chen Shenghua " entrust a contract " and " Guangdong value added tax is average bill " show, its paid lawyer charge actually already 13000 yuan, but as a result of " loan agreement " and " reimbursement specification " invalid, the clause that the problem assumes about lawyer charge in the contract also disables, chen Shenghua puts forward to ask Chen Hailin pays the lawsuit of lawyer charge the request, this academy does not grant to support. 4 gardens sell the liability issue that inn agree carries. What because inn of 4 gardens sale is,manage by Chen Hailin is individual and industrial and commercial door, belong to Chen Hailin's belongings, accordingly, 4 gardens sell inn to assume responsibility of collective pay off to afore-mentioned debt of Chen Hailin.
Adjudicative result
Accordingly, forensic court decision: Accuser Chen Shenghua returns 10 days of introversion since the day that computer of the accused Chen Hailin, 4 gardens sells inn to should produce legal effectiveness at this court decision return loan principal RMB 58000 yuan reach exceed the time limit to pay accrual loss (this accrual loss oneself; Reject the other suit of accuser Chen Shenghua to request.
The lawyer is commented on
Basis " top people court about hearing civilian leasehold case applicable law the regulation of a certain number of problems " the 14th the first regulation, set take fund of financial orgnaization credit usury turns lend borrower, and borrower knows what or ought to know to belong to invalid contract beforehand. This case is accordingly medium, the contract that both sides of former, the accused signs is maintained to be by the court invalid. Although accuser holds the fourfold computation interest of the interest rate of loan of the corresponding period that agrees by the contract, but disable as a result of bilateral contract, the court supported only by loss of accrual of computation of standard interest rate. Notice here is accrual loss, is not accrual, because of the contract invalid circumstance falls, nonexistent the issue that pays interest.
Additional, both sides has a retaining fee in the agreement in the contract, but disable as a result of the contract, the retaining fee agrees the clause is invalid, the court fails to support request the accused to bear the litigant request of the retaining fee, but the loss that the author thinks because invalid place creates the contract,this can serve as puts forward, partake by both sides next this share loss, but regretful is accuser did not hold the right so, so this share loss can be assumed by him accuser only.
