" civilian leasehold judicatory explains " 32 leasehold to folk interest issues gave the 25th ～ specific provision. In trying practice applicable afore-mentioned regulations need to note the following problem:
One, the leasehold both sides of the 25th regulation does not have conventional accrual or conventional accrual handles an issue unidentifiedly
1, accrual has reach without the agreement belonged to a fact clearly to hold an issue.
Above all, to " did not agree accrual " case must accord with two conditions:
One of, is open to question;
Secondly, leasehold both sides proves his view without evidence.
In the agreement when unidentified condition, although have " agree " 2 words, but if whether have an agreement to accrual,form advantage evidence hard, still be a kind of condition that agrees without accrual character actually.
Next, leasehold both sides does not have the definite agreement of accrual, interest rate possibly in written evidence, but after party produces controversy to appeal to to the court, often the view that lender can have oral agreement interest rate, interest. Leasehold both sides proves without written evidence to accrual or agree namely below uncertain condition, lender advocates beneficial interest agrees, borrower counterplea does not have accrual to agree, should basis " contract law " hypostatic regulation and " code of civil law " program regulation, agree to accrual according to high probability principle the fact undertakes finding out.
Our country " contract law " the 197th regulation, "Loan contract uses written form, but borrow or lend money is additional between the natural person the except that has an agreement. " set according to our country law namely, leasehold to be not the folk between financial orgnaization legal person or other organization, in principle asks to conclude with written form, the accrual that regards loan contract as serious content should have written account, considering the personal loan between the natural person, many it is the provisionality with less, shorter time uses number, and more familiar relation exists between lender and borrower, differ choose a site for the capital takes written form, can try to agree with other form by lender and borrower.
To the agreement of oral accrual, its effectiveness how look upon?
On one hand, according to our country " contract law " the 36th regulation, "Law, administrative regulations sets or party agreement uses written form to conclude contract, party did not use written form but one party has fulfilled main obligation, the other side accepts, this contract holds water. " on the other hand, " contract law " be not effectiveness sex the 197th times mandatory regulation, should inspect the tubal reason that contains how-to character to set, it is namely in civilian leasehold contract, have oral agreement to accrual like leasehold both sides, law also approbates his lawful sex.
Component of oral agreement interest is the following kinds of case:
The first kind of case, leasehold both sides all grants to approbate to the accrual of oral agreement, do not have controversy to the interest rate of oral agreement.
The 2nd kind of case, leasehold both sides just admits mediumly to have the interest of oral agreement, other one party grants in order to deny.
The 3rd kind of case, leasehold both sides admits to accrual agrees the fact gives, but put in difference on interest rate discretion.
The first kind of case is simpler, do not attribute a situation with an applicable regulation, should the about accrual, interest rate general principle processing that applicable judicatory explanation sets.
The 2nd kind of case can be divided again undertake handling for two kinds of circumstances, the key is bilateral whether the view that offers evidential him proof, if advocate the one party that beneficial interest agrees can provide evidence, ought to think both sides is beneficial interest agreement, if make a thorough investigation of hard to interest rate agreement, regard as " accrual agreement is unidentified " case, according to an explanatory regulation, if both sides all is a natural person, when accrual agreement is unidentified, lender advocates those who pay interest, people court does not grant to if only one party is a natural person,support; bilateral perhaps all be legal person of blame finance orgnaization or other organization, content of combinative loan contract, and basis place or the person trades at that time means, trade the element such as habit, market money rate defines interest. If advocate,just can offer the evidence that agrees without accrual or view to accrual one party cannot provide strong evidence without accrual. Criterion creditor should bear adverse consequence, regard as " did not agree accrual " .
The 3rd kind of case is belonged to " accrual agreement is unidentified " case, leasehold both sides agrees to beneficial interest is honest existence, but stick to his argument to both sides of interest rate discretion, basis this explanatory regulation undertakes handling.
2. borrows period the demarcate inside, did not agree accrual, but can bear interest of exceed the time limit.
So, the limit range of an explanation is " borrow period inside accrual " , namely leasehold both sides borrows without the agreement period inside accrual perhaps borrows period inside the processing with accrual unidentified agreement. But to accrual of exceed the time limit not because borrow period inside did not agree accrual or accrual agreement are unidentified and same do not grant to support, according to why to plant support of interest rate standard, should be united in wedlock other law and explain other item provides understanding originally.
" opinion of civil code general rule " the 123rd regulation, "Between the citizen without breath loan, the agreement repays deadline and borrower does not repay on schedule, perhaps did not agree repay deadline but classics lender is urged after accusing, borrower still does not repay, accrual of exceed the time limit of liquidate of lender requirement borrower, ought to give allow. " so, even if is to borrow period inside the free loan that does not have conventional accrual, if after reimbursement deadline at the expiration of one's term of office of the agreement, had formed what fulfill tardily, borrower agree carries the responsibility that fulfils tardily.
Law sets the loss that will fulfill tardily, try to calculate with the means of accrual. " top people court about lawfully the announcement that case of leasehold dispute of appropriate cognizance folk accelerates economic progress to safeguard a society to stabilize " regulation, "Party did not agree already borrow period inside interest rate, also did not agree of interest rate of exceed the time limit, lend ginseng takes the corresponding period of Chinese people bank congener loan is standard interest rate, advocate the accrual losing since the day from reimbursement of exceed the time limit, give lawfully support. " this explanation also sets, if leasehold both sides does not have an agreement to borrow period inside interest rate, also do not have interest rate of conventional exceed the time limit, lender advocates the day from loan exceed the time limit is remanded by borrower during capital takes up accrual losing, people court should grant to support.
2, the problem of the upper limit of leasehold interest rate of judicatory protection folk of the 26th standard
1. annual interest leads 24% the following folk leasehold interest rate to be able to apply for judicatory to be carried out compulsively.
Interest rate is in 24% the following folk leasehold, the safeguard of force of law of its accrual merit.
2. exceeds annual interest to lead the part of 36% to maintain to disable.
The market has the corrupt practice of sex of blindness, spontaneity, lag, if execute interest rate completely to liberalize, can bring about put the person that borrow to derive from a body to obtain most golden eggs raises folk's leasehold interest rate ceaselessly, go against capital thereby the optimizes leasehold market of configuration and folk long-term development inside money market. Consequently, be necessary to have certain restriction to upper limit of civilian leasehold interest rate with legal form. This kind restricts the usual practice on private law is the interest rate prep above upper limit the agreement is maintained to disable, those who exceed upper limit ought to serve as to paid interest so undeserved that benefit returns person of Wu of repay a debt.
3. annual interest leads 24% ～ the civilian leasehold interest rate of 36% has creditor's rights retentivity but without executive force.
The effectiveness of creditor's rights, from the observation on the principle, have request force, executive force and retentivity. Specific go up to civilian leasehold problem, once leasehold behavior is finished, accrual also immediately becomes one of creditor's rights with the form that legal propagate ceases part. We advocate, leasehold to the folk between 24%~360/0 of annual interest rate interest should hold the debt that is nature, specific processing program is: The creditor's rights between 24%~36% does not have request force, but the agreement also is not invalid, just request Fu Shi when creditor, debtor must reject to pay, creditor must not enforce through lawsuit debtor is fulfilled just. If debtor random gives,pay, and creditor suffers when getting, the court also must not be maintained for undeserved benefit. Change character, should enjoy the retentivity of creditor's rights, but the executive power that does not enjoy creditor's rights.
3, the 27th normative principal amount holds the issue that reachs accrual to must not be deducted beforehand from inside capital
Those who require an attention is, the amount of principal amount maintains those who reach accrual to be deducted ahead of schedule, answer to prove according to civil suit quote responsibility gives the fact is maintained.
A judicatory explanation establish the preliminary evidence effectiveness that the creditor's rights proof such as receipt for a loan, receipt, receipt for a loan maintains to capital. But animal farm to still have no big out-of-pocket expense at our country on one hand compulsive bank turns the regulation of Zhang, be based on whole society to ask for those who believe a system to remain to rise on the other hand, be based on the sex pursueing interest of capital additionally, carry on creditor's rights proof bright the capital number that loan amount often gets actually with borrower is abhorrent. And the practice that at present lender deducts interest ahead of schedule concealments quite commonly, fixed close an account often has between lender and borrower, sign the written document such as settle accounts agreement, reimbursement agreement, or the principal amount that with changing the means of creditor's rights proof such as receipt for a loan, IOU, receipt causes creditor's rights proof to carry amount of bright loan principal to be not borrower to be received actually. Once lender asks to wait for creditor's rights proof to be basis requirement reimbursement with receipt for a loan, borrower often is included with the creditor's rights proof such as receipt for a loan invisible high interest, deduct amount of accrual, actual principal and Zaiming ahead of schedule principal amount is abhorrent wait for counterplea, the court checks very hard the actual number of loan principal. Here case falls, should whether does the loan fact that preliminary judgement lender holds have the reasonable suspicion that cannot remove, putting when reasonable suspicion, should ask lender is farther quote. The legal fact of actual to capital number is maintained, should with " code of civil law " reach " judicatory of code of civil law explains " for the basis, reasonable allocation quote proves responsibility.
" judicatory of code of civil law explains " the responsibility that the 90th clear party has the behavior sense that provides evidence in civil suit, want party to put forward what advocate at the fact with advantageous oneself in civil suit only. The quote responsibility of the behavior sense that ought to offer evidential; party to provide evidence, the fact that the fact that ought to request a basis around its lawsuit perhaps refutes lawsuit of the other side to request a basis undertakes; party provide evidence in lawsuit, ought to reach the level that proves the fact that treat disease, if cannot make the fact gets a proof, criterion party ought to bear corresponding adverse consequence. " judicatory of code of civil law explains " the 91st stipulated quote responsibility distributive is general and regular, civilian leasehold case also should be accordingly on the base that to civil substance standard standard has the category is analysed, identify right happening standard, right to eliminate standard, right to restrict standard and cloggy standard. " judicatory of code of civil law explains " the 108th proves to quote the standard makes a provision, prove the evidence that the party of responsibility provides to having quote, people court classics is examined and combine relevant fact, believe firmly those who have high probability to the fact that treat disease exists, ought to maintain this fact to exist. The evidence that the party place that has quote to prove responsibility to refute to one party party holds a fact and provides, people court classics is examined and combine relevant fact, think true bogus of the fact that treat disease is unidentified, ought to hold this fact nonexistent:
According to afore-mentioned evidential regulation theory of law, lender is based on borrower of requirement of impact of civilian leasehold legislation to wait for amount of principal of Zaiming of creditor's rights proof to remand according to receipt for a loan, receipt, IOU of loan, above all ought to quote proves bilateral party already reached leasehold and acceptability fact, and hold bright amount according to creditor's rights proof already solid the evidence that keeps consign, if remittance proof, bank turns,Zhang is recorded etc. Be like fact of nonexistent doubtful point, can maintain lender to fulfil his quote responsibility. Borrower advocates accrual has been deducted ahead of schedule, answer this fact to assume quote responsibility. If lender not quote proves its already carried bright amount to pay money actually according to creditor's rights proof, borrower counterplea advocates accrual has been deducted ahead of schedule, and of the reasonable suspicion that the presence of loan principal amount that lender maintains cannot remove, for instance creditor's rights proof carries bright major money turns through the bank Zhang and others money with cash consign and do not have other evidence confirm, people court should ask lender fills strong evidence, in order to remove reasonable suspicion. The balance that if lender is indemonstrable,holds bright amount with creditor's rights proof with cash consign fact, answer this part lawsuit to request not to grant to support.
Additional, the fact that whether deducts interest to the capital in civilian leasehold case is maintained more complex. Want a foundation " code of civil law " regulation, compare each other from this card and counterevidence angle, principle of establish height probability. This card is lawsuit proves the process is medium, the party place that treats card fact to have quote responsibility undertakes proving an activity, for instance lender advocates creditor's rights proof carries bright amount to be amount of actual loan principal namely, offer a bank to turn the evidence such as Zhang record, receipt, counterevidence offers evidence to have refuted proof activity to this card to do not have the party of quote responsibility namely, lender offers witness testimony to prove accrual to had been deducted ahead of schedule, get loan amount and creditor's rights evidence actually Zai Mingjin forehead is not consistent. This card proves mobile purpose depends on making the judge formed a heart to believe firmly to needing the presence of card fact, this kind of heart believes firmly the lowest that ought to satisfy a proof to evaluate asks namely legal proves a standard, and the proof activity of counterevidence, the purpose believes firmly in the heart that at shaking the judge forms to this card place, make its short of proves the lowest of the evaluation asks. To counterevidence, its prove degree asks to want than this card low, need to make true bogus of be confined to of the fact that treat disease unidentified only can.
The judge has no right to reject a judgment. In proof of lender view creditor's rights Zai Mingjin forehead is amount of actual loan principal, loan to deduct creditor's rights proof ahead of schedule into view accrual namely Zai Mingjin forehead and receive amount actually abhorrent, existence of the fact that treat disease cannot decide, when true bogus is unidentified, should according to " judicatory of code of civil law explains " the 108th regulation, the quote responsibility that goes up according to result meaning undertakes deciding.
4, the 28th normative folk is leasehold in the problem of compound interest
How is the compound interest that agrees with other form in 1. folk leasehold relation maintained?
State from literal on look, this set the condition that issues creditor's rights certificate afresh only, because be below the case that issues creditor's rights certificate afresh,this is, the agreement about compound interest relatively concealment, often put to the cognizance of capital open to question, hear a difficult point of this kind of case into courtyard of humanness civil code. But a regulation that the regulation is pair of compound interest problems essentially, accordingly, if party agreed with other form compound interest, can consult this the regulation will maintain. For instance bilateral party makes clear case of calculative of conventional compound interest, the frequency of compound interest of no matter conventional interest rate is much tall, computation how many, consult a regulation, people court gives the limit of the sum of principal and interest is base with initial capital namely, lead 24% computation with annual interest the accrual during whole loan and original capital the sum, exceed the share of this limit, people court does not grant to protect.
2. falls in the case that issues new creditor's rights evidence afresh for many times continuously, how are capital and accrual maintained?
Below the case that just issues creditor's rights certificate afresh, according to a regulation, hold capital and interest still easily, but party of the both sides in practice often issue creditor's rights certificate afresh for many times, be equivalent to appearing much period loan, below this kind of case, need the consideration that divide a pace at least:
The first pace, according to a the 1st section provision, maintain each stage by stage period capital, final computation gives the sum of principal and interest of final first phase, this also is the amount; that loan request debtor repays normally
The 2nd pace, according to a the 2nd section provision, the sum of principal and interest that judges final first phase has without exceed legal upper limit, it is base with initial capital namely, with annual interest rate the accrual during whole loan mixes 24% calculative original capital the sum. Exceed the share of upper limit, people court does not grant to protect.
Illustrate: Loan principal is 1 million yuan, rate of conventional annual interest is 20% , loan time limit expires every time, issued creditor's rights certificate afresh, conventional capital is 1.2 million yuan, annual interest rate and loan time limit are changeless. After this is annual and such, issued certificate of triplet creditor's rights again, agree capital is 1.44 million yuan respectively, 1.728 million yuan, two million and seventy-three thousand six hundred yuan. Show creditor to ask gold of debtor countervail repayment of capital reachs accrual two million and seventy-three thousand six hundred yuan four hundred and forteen thousand seven hundred and twenty yuan in all two million four hundred and eighty-eight thousand three hundred and twenty yuan.
According to a the 1st section provision, this loan has 5 in all period, the annual interest rate that every first phase agrees all did not exceed 24% , the accrual of reason early days but the capital of plan person later period. Be like the 1st period capital is 1 million yuan, this is first capital number, the accrual of generation is 100 × 20%=20 10 thousand yuan, this accrual is OK plan person the 2nd period capital, reason the 2nd period capital is 100+20=120 10 thousand yuan of; are base with this principal amount, the 2nd period accrual is 120 × 20%=24 10 thousand yuan, but plan person the 3rd period capital, reason the 3rd period capital is 120+24=144 10 thousand yuan. Manage together, the 4th period capital is 144+144 × 20%=172.8 10 thousand yuan, the 5th period capital is 172.8+172.8 × 20%=207.36 10 thousand yuan, the 5th period accrual is 207.36 × 20%=41.472 10 thousand yuan, principal and interest and for 207.36+41.472=248.832 10 thousand yuan, this also is the amount that creditor asks to repay. According to a the 2nd section provision, it is I00 because of initial principal amount 10 thousand yuan, passed 5 period, 5 years are during whole loan, the upper limit that cause principal and interest mixes is: 100+100 × 24%x5=220 10 thousand yuan. The amount that creditor requests had exceeded upper limit, two million four hundred and eighty-eight thousand three hundred and twenty yuan when request to creditor so, people court can support 2.2 million yuan only, the 248.832-220=28.832 to exceeding upper limit 10 thousand yuan, people court does not grant to support.
3. debtor repays after partial money, below the case that issues creditor's rights certificate afresh again, how are principal and interest and upper limit calculated?
In practice, loan concern is not invariable, its content is in all the time in changing, if be during loan,loan amount can increase likely or decrease. Common case is repaying like debtor after partial money, both sides is right partial item reappoint, issue creditor's rights certificate afresh again, how should be principal and interest and upper limit maintained below this kind of case?
Try illustrate: Jia Yishuang just signs loan agreement, armour is lender, second is borrower, conventional loan amount 1 million yuan, annual interest is led 24% , loan time limit 1 year of;1 year after expiring, borrower second repaid to lender armour only because of capital turnover question 500 thousand yuan, jia Yishuang just signs loan agreement, conventional loan amount is 740 thousand yuan, annual interest rate still is 24% , loan time limit is 1 year of;1 year after expiring, jia Yishuang just signed loan agreement again, conventional loan amount is nine hundred and seventeen thousand six hundred yuan, annual interest is led 24% , borrow period 1 year of;1 year after expiring, gold of repayment of capital of countervail of armour request second nine hundred and seventeen thousand six hundred yuan and accrual two hundred and twenty thousand two hundred yuan, add up to one million one hundred and thirty-seven thousand eight hundred yuan. Should people court deny support to its lawsuit request?
Above all, in this case, the conventional capital of loan agreement is 740 thousand yuan, these 740 thousand yuan add 500 thousand yuan when had repaid, had included the interest that 1 million yuan of capital are in early days the 1st year to arise 240 thousand yuan, according to a the 1st regulation, annual interest rate of the agreement did not exceed highest annual interest to lead 24% , reason these 240 thousand yuan can plan enter later period capital, so 740 thousand yuan of the agreement of loan agreement can be maintained for the 2nd period capital. Manage together, nine hundred and seventeen thousand six hundred yuan of the agreement of loan agreement also are included the 2nd period accrual one hundred and seventy-seven thousand six hundred yuan, can maintain for the 3rd period capital. To this, not should fathomless.
But next, how should be these nine hundred and seventeen thousand six hundred yuan accrual maintained, whether to get a the 2nd limitation?
This problem generates controversy easily, exist at least the following 3 kinds of viewpoints: The first kind of viewpoint thinks, because of the computation of an upper limit of the 2nd regulation is " it is base with first loan principal " , if debtor has repaid partial money, cause principal of later period loan to be less than first loan principal, criterion no longer applicable a the 2nd section provision, the annual interest that wants bilateral party agreement only is led not prep above 24% , criterion the interest number that its request can support. If this case is medium the 3rd period loan principal is nine hundred and seventeen thousand six hundred yuan, already was less than first loan principal 1 million yuan, rate of conventional annual interest did not exceed 24% , reason to later period accrual 91.76 × 24%=22.02 10 thousand yuan, later period principal and interest and 91.76+22.02=113.78 10 thousand yuan, people court all can support. The 2nd kind of viewpoint thinks, if debtor has repaid partial money, cause principal of later period loan to be less than first loan principal, still answer to be base with first loan principal, computation gives a principal and interest and upper limit, the amount the sum that the amount that creditor requests and debtor had repaid should not exceed this upper limit, that is to say, the part that this principal and interest and upper limit subtract debtor has repaid, request to be able to receive supportive share for creditor lawsuit namely. If this case is medium, first loan principal is 1 million yuan, 3 years are during loan, criterion principal and interest and upper limit are 100+100 × 24%X3=172 10 thousand yuan, 500 thousand yuan when subtractive second has repaid hind for 172-50=122 10 thousand yuan, the lawsuit of armour requests to did not exceed this amount, courtyard of old friend civil code can support.
The 3rd kind of viewpoint thinks, cannot mechanical understanding a the 2nd section provision, the 2nd regulation is principle regulation, it is the case that shows nonexistent loan amount is fluctuant, if debtor has repaid partial money, cause principal of later period loan to be less than first loan principal, the computational kind of a principal and interest of the 2nd regulation and an upper limit should produce corresponding change, the principal of loan of that first phase that should be less than first loan principal in order to begin regards computation as base, with later during computational principal and interest and upper limit come during serving as loan. If this case is medium the 2nd period loan principal is 740 thousand yuan, begin to be less than amount of first loan principal, 2 years are during the loan later, cause principal and interest and upper limit are 74+74 × 24% × 2=109.52 10 thousand yuan. One million one hundred and thirty-seven thousand eight hundred yuan when armour requests had exceeded this upper limit, reason should not support to the share that exceed.
The author thinks, from in light of a formulary setting and basis, the 3rd kind of viewpoint is more adjacent an original idea that draft. Reason is as follows: The understanding of the first kind of viewpoint is not quite comprehensive, reflected pair of computation compound interest only approbate, but report does not give special to compound interest calculative rule to make, because explain the 26th has been been opposite originally,regulation of folk's leasehold interest rate upper limit is 24% , if want interest rate not to exceed 24% only, be restricted no longer, criterion a sense that the 2nd regulation lost existence. The 2nd kind of viewpoint sees plausibility, also compare easy computation, facilitate real operation, but the reimbursement act to its interest immediate impact that ignored debtor. Had repaid in debtor especially below the case of major money, means of this kind of computation lost his actually " upper limit " compasses control function. Reason photograph is compared and character, the author more apt the 3rd kind of viewpoint, although way of this kind of computation is opposite trival, but be close to an original idea of a regulation more, the reimbursement action that also can reflect debtor is right the immediate impact of its interest, positive effect arrives since seasonable to making debtor reimbursement thereby.
5, interest rate of the 29th normative exceed the time limit handles an issue
Calculative of accrual of reimbursement of 1. exceed the time limit ends time.
Calculative of accrual of reimbursement of exceed the time limit ends time does not have specific provision because of law, put in judicatory judgment have very big controversy. Have the following 4 kinds of viewpoints:
The first kind of viewpoint thinks. The day that reimbursement accrual should count exceed the time limit to be sued to usurer stops;
The 2nd kind of viewpoint thinks, the day that reimbursement accrual should count exceed the time limit to produce legal effectiveness to the court decision stops;
The 3rd kind of viewpoint thinks, accrual of reimbursement of exceed the time limit should calculate what decide to the court decision to walk on day of at the expiration of one's term of office of date of departure to stop; the 4th kind of viewpoint thinks,
We think, the penalty due to breach of contract that the property of accrual of reimbursement of exceed the time limit is reimbursement of exceed the time limit or loss compensation, borrower is before pay off loan the condition of its break a contact lasts all the time in, ought to assume by borrower perhaps recoup a loss till the penalty due to breach of contract between all pay off. As to " code of civil law " those who pay money obligation is fulfill during the 229th regulation is carried out what the person did not appoint by the court decision, what ought to pay doubly to walk on the debt interest between date of departure tardily is compulsory, apply since August 1, 2014 " the debt interest applicable law during top people court is fulfilled tardily about carrying out the computation in the program the explanation of a certain number of problems " had made clear computation, do not conflict with the computation of accrual of exceed the time limit also do not repeat, both and OK part applicable.
This 2. judicatory explains about folk the judicatory of leasehold interest rate protects upper limit the 26th to apply to interest rate of exceed the time limit likewise.
Namely the interest rate of exceed the time limit that leasehold both sides agrees did not exceed annual interest to lead 24% , lender requests borrower to pay interest according to conventional interest rate, people court should grant to support. The interest rate of exceed the time limit that leasehold both sides agrees exceeds annual interest to lead 36% , the accrual agreement that exceeds a share is invalid. Borrower requests lender to return the interest that returns prepaid to exceed annual interest to lead 36% parts, people court should grant to support. The interest rate of exceed the time limit that leasehold both sides agrees exceeds annual interest to lead 24% Dan Weichao crosses annual interest to lead 36% , borrower requests lender to return the interest that returns prepaid to exceed annual interest to lead 24% parts, people court does not grant to support; borrower to did not pay the interest that exceeds annual interest to lead 24% parts, lender request borrower is returned return, people court does not grant to support.
6, of the 30th standard leasehold in the problem that when accrual of exceed the time limit, penalty due to breach of contract, other charge coexists, manages like where
1. advocates in lender the case of accrual of exceed the time limit and penalty due to breach of contract falls along with all the others, when be being maintained respectively to accrual of exceed the time limit and penalty due to breach of contract,
The place before be like is narrated, below the case that argues accrual of exceed the time limit and penalty due to breach of contract along with all the others in lender, should part to be made to the amount of accrual of exceed the time limit and penalty due to breach of contract first maintain, judge both the sum to whether exceed annual interest to lead again 24% . Putting open to question issue is: When be maintained respectively to accrual of exceed the time limit and penalty due to breach of contract, whether to also need to get the limitation of 24% ? A kind of viewpoint thinks, because be same legal be restricted high standard, be opposite both when be being maintained respectively, do not need to consider this issue, judge again after both addition can, operate easily in practice so. Another kind of viewpoint thinks, be like strict according to this regulation the 29th is mixed a meaning of a regulation, the penalty due to breach of contract of accrual of exceed the time limit and reimbursement of exceed the time limit all is led the limitation of 24% by annual interest, be in so when holding both amount respectively, need judgement has without exceed annual interest to lead 24% .
The author thinks, the penalty due to breach of contract because of reimbursement of accrual of exceed the time limit, exceed the time limit and both the sum all applicable annual interest is led of 24% legal be restricted high standard, accordingly, look from juridical result, these two kinds of viewpoints are consistent, its differ to depend on a process be being stated mediumly only, to facilitate be operated in practice, author apt the first kind of viewpoint.
2. both sides did not agree the case of interest rate of exceed the time limit falls, lender can be denied hold interest of exceed the time limit already, hold penalty due to breach of contract again?
A case that the regulation applies to leasehold both sides to all have an agreement to interest rate of exceed the time limit and penalty due to breach of contract only. So agreed only in leasehold both sides among them below a kind case, how to maintain?
If leasehold both sides agreed only interest rate of exceed the time limit, did not agree penalty due to breach of contract, because of " contract law " what set conventional penalty due to breach of contract only is applicable, below the case that reason did not agree in both sides, lender cannot hold penalty due to breach of contract, not big to this controversy. If leasehold both sides agreed only penalty due to breach of contract, did not agree interest rate of exceed the time limit, lender whether hold penalty due to breach of contract already, hold interest of exceed the time limit again? Have different point of view to this.
The first kind of viewpoint thinks, this does not attribute a situation of a regulation, reason cannot applicable a regulation, lender cannot advocate at the same time.
The 2nd kind of viewpoint thinks, the basis sets the 29th provision originally, leasehold both sides did not agree interest rate of exceed the time limit perhaps agrees unidentified, accrual of reimbursement of lender position exceed the time limit or during capital takes up accrual losing, people court should grant to support, so lender can hold interest of exceed the time limit according to this regulation. What leasehold both sides cannot eliminate this to the agreement of penalty due to breach of contract is applicable.
Author apt the 2nd kind of viewpoint, reason is:
(Accrual of 1) exceed the time limit and property of penalty due to breach of contract are different. If above paragraphs place is narrated, below the case that did not make an agreement to accrual of exceed the time limit in leasehold both sides, accrual of exceed the time limit has the quality that the loss compensates for, lender can ask borrower recoups its capital loss with the form of accrual of exceed the time limit. And according to " contract law " regulation, penalty due to breach of contract has castigatory sex, its purpose basically depends on assuring of the contract fulfill. The loss is compensated for and penalty due to breach of contract does not repel each other.
(The applicable condition of the applicable condition of the penalty due to breach of contract that 2) leasehold both sides agrees and accrual of exceed the time limit is not same. Accrual of exceed the time limit falls without the case of extraordinary agreement in leasehold both sides, it is the day from reimbursement of borrower exceed the time limit can applicable, but the applicable condition of penalty due to breach of contract depends on bilateral agreement. If above paragraphs place cites case, jia Yishuang just is to agree in Party B exceed the time limit exceeds issue of penalty due to breach of contract just is involved after 3 months. Also there is no lack of in practice actually this kind of agreement, time of exceed the time limit is longer, assumed responsibility of breach of contract is heavier, meaning making borrower seasonable reimbursement, those who assure a contract fulfill. Below this kind of case, if do not support the view to accrual of exceed the time limit, cannot compensate to the capital loss of lender.
(The penalty due to breach of contract of accrual of 3) exceed the time limit and reimbursement of exceed the time limit all is led the limitation of 24% by annual interest, although advocate along with all the others, also won't create the result with result tall, inequitable to borrower abnormal.
On put together, the author thinks, agreed in leasehold both sides the penalty due to breach of contract of reimbursement of exceed the time limit, case that did not make an agreement to accrual of exceed the time limit falls only, if lender holds penalty due to breach of contract not only, return what at the same time the basis stipulates the 29th holds interest of exceed the time limit originally, can give support, but in final result maintain on, should consult a regulation, accrual of exceed the time limit and add up to of penalty due to breach of contract must not exceed annual interest to lead 24% .
Mix to accrual of exceed the time limit in 3. loan contract of penalty due to breach of contract state adjacent cause both when distinguishing hard, how to maintain?
Be based on the 2nd afore-mentioned problems, the meeting in practice produces a problem: If leasehold both sides is in leasehold contract,state to the civil liability of reimbursement of exceed the time limit unidentified, cannot judge directly when belonging to accrual of exceed the time limit or penalty due to breach of contract, how to judge? For instance both sides agrees " be like borrower cannot seasonable reimbursement, criterion every exceed the time limit a day, according to... interest rate pays exceed the time limit penalty due to breach of contract to lender " , have interest rate already among them state, have the formulation of the gold that violate again. If maintain,be accrual of exceed the time limit, direct according to this regulation the 29th gives if cognizance; is maintained for penalty due to breach of contract, involve lender whether the problem of accrual of reassertion exceed the time limit.
The author thinks, below this kind of case, although the name calls penalty due to breach of contract of exceed the time limit, but agreed clearly interest rate, agreed according to day of exceed the time limit number pays certain amount everyday, be close to more on its formally and property at accrual of exceed the time limit, unfavorable maintain for penalty due to breach of contract. This kind of case leaves reason, lender cannot consult again this the regulation advocates accrual of exceed the time limit and dispatch make an appointment with gold along with all the others.
7, after the 31st normative borrower ceases to Fu Li of one's own accord, must not again clear beg lender to return return a problem
The need in practice notices: Natural debt and the differentiate and analyse that relevant law concerns.
1. and donative distinction.
Do not have conventional accrual and give of one's own accord pay certain interest, accord with the characteristic of natural debt, it is the debt that is based on morally obligation to arise, specific tell even if be in jural did not give Fu Yi Wu, giving paid happening is the reason that is based on morality, conscience to go up. This kind gives pay with donative have moral basis, distinguish very hard on the exterior. In practice, discriminative both ought to notice the following:
(1) donative person is be based on donative contract become effective and be to pay, it is to fulfil jural obligation, namely the obligation that donative contract agrees. And in natural debt, debtor from only then the law that did not fulfill debt is voluntary, make what debtor fulfills debt actively and be give pay, because the moral obligation of pressure arises on conscience,be.
(2) distinguishs the key of both, it is to see Fu Ren whether have what go up objectively " the obligation of morally " . If give Fu Ren subjective going up is " fervent " , should give Fu Hang to pay a person to if give,belong to donative; subjective going up is " be based on social obligation or moral obligation " and get pressure, should give pay the debt that belongs to nature the category. For example, someone sees neighbour home has difficulty, think mutual help is a goodness between neighborhood, then affirmatory contribution gives neighbour 10 thousand yuan, this is those who be based on moral obligation is donative, go up objectively both sides does not have compulsory; and borrower and lender are objective going up is existence connection, no matter borrower is the moral obligation that stems from external pressure or heart, as subjective as donative person the jumping-off place that go up is discriminating.
2. and undeserved the relation of the debt of benefit.
Our country " civil code general rule " the 92nd regulation, "Without legal basis, acquire undeserved interest, cause other losing, ought to return taking undeserved interest the person that still suffers lose. " the undeserved system that get benefit is legal adjustment distributes the show with achieving fairness. The one party that do not have jural reason and gains profit should get place the interest to return still, and a when damage kills request having right gains profit to just be returned return a profit, make the interest of party restores thereby previously condition. The undeserved system that get benefit stresses debt must have to Fu Bi " legal basis " , want to have jural reason, be damaged to just can request to return otherwise still. Natural debt is accorded with completely undeserved benefit " without legal basis " establish important condition, suffer those who get a person to obtain an interest to just stem from morally to Fu Ren is compulsory and without jural reason, stripped damage is returned just still request authority, it is the special provision that is based on law. Accordingly, can inspect natural debt special and undeserved benefit. What why law admits one part does not have legal basis can exceptionally is undeserved benefit? The reason depends on this kind undeserved benefit is according with natural law spirit substantially, be based on " the proper sex on natural law " , gift its antagonism returns the contradictory authority that still requests to accord with a society general justice idea.
8, the 32nd normative borrower shifts to an earlier date refund problem
1. decides an issue really about deadline of loan contract reimbursement.
A reimbursement deadline that applicable premise condition is contract of certain borrow or lend money namely, want to this strict according to " contract law " the reimbursement deadline of the 206th regulation confirms, and want special attention " contract law " what set the 61st times is applicable. " contract law " of the 61st regulation " perhaps trade about the clause according to the contract the habit is affirmatory " the abstract sex with be had certain and uncertainty. If party is right " the contract concerns a provision " , " trade habit " have different understanding, should allow party quote to prove respective view, elaborate the specific reason of respective view adequately, the judge is on the foundation of the position that checks Hui, cognizance party adequately and evidence, in the light of the case particular case is made maintain.
2. repays ahead of schedule about borrower the accrual computation problem after partial loan.
The borrower in practice may repay ahead of schedule only partial loan, did not repay ahead of schedule total borrow or lend money, this meeting is mixed to the plan news time limit of loan contract plan interest number produces an effect. Managed borrow or lend money from Li Mou on January 1, 2014 like Zhang Mou 100 thousand yuan, agree on January 1, 2015 reimbursement, accrual presses interest rate of loan of the corresponding period of Chinese people bank to calculate. Zhang Mou repaid at shifting to an earlier date on October 1, 2014 30 thousand yuan. Two phase have the interest number part of one's job that should repay to Zhang Mou so computation. The first phase is came on January 1, 2014 on October 1, 2014, this phase should be base computation accrual with 100 thousand yuan of loan. The 2nd phase is came on October 2, 2014 on January 1, 2015, because Zhang Mou repaid ahead of schedule 30 thousand yuan, the loan of this phase is reason 70 thousand yuan, should calculate for base with 70 thousand yuan the accrual of this phase.
3. asks to shift to an earlier date about borrower refund but the accrual computation problem when paying not actually.
In practice, although borrower puts forward to want to shift to an earlier date refund, but borrower and lender may be right specific loan amount, accrual pays means of computation of deadline, accrual to wait for problem happening controversy, bring about borrower to shift to an earlier date not actually from this refund. To this, as a result of,refund is bilateral controversy be caused by, ask to put forward to shift to an earlier date from its interest should not pay again since the day of reimbursement, how to answer to handle to this?
Because borrower put forward to shift to an earlier date merely the view of refund, did not pay actually, loan still is being used actually by borrower, the time that in principle still should pay borrow or lend money actually according to borrower will calculate accrual, borrower puts forward reimbursement to advocate merely and of not actual reimbursement, cannot reduce number of its payable interest accordingly normally.
4. shifts to an earlier date about borrower the take out problem in refund.
In having breath borrow or lend money, if borrower repaid ahead of schedule partial loan, so this part reimbursement should preferential maintain is to repaid accrual is returned capital? Be in loan l10000 from Li Mou like Zhang Mou yuan, borrow period 1 year, conventional accrual 1000 yuan. If Zhang Mou shifts to an earlier date to enjoyed some to pay 5000 yuan, these 5000 yuan should be maintained entirely to repaid capital, should still deduct the interest that should day of the reimbursement on cut repay first?
" top people court about applicable (contract law of People's Republic of China the explanation of a certain number of problems (2) " the 21st regulation, "Debtor is divided advocate accrual and fee still ought to pay besides debt, give when its pay can't pay off is all when debt, and party is done not have agree, people court ought to according to following and ordinal take out: (One) the concerned charge;(that realizes creditor's rights 2) accrual;(3) advocate debt. " set according to this, be like Zhang Mou and Li Mou to do not have an agreement to take out, zhang Mou's reimbursement should first take out accrual, odd part ability maintains those who be pair of capital to repay.
Whether does 5. have power demand borrower about lender according to ahead of schedule the problem of reimbursement agreement reimbursement.
In practice, if borrower view shifts to an earlier date refund, lender expresses to agree, when after this borrower goes back on his word, whether does lender have authority to ask borrower shifts to an earlier date refund? If borrower and lender both sides shift to an earlier date clearly,refund reachs unanimous opinion, so the agreement that this belonged to both sides to reach contract of modificatory original loan, if this changes what the agreement accords with a contract,hold water and become effective important document, after this is bilateral answer to fulfil oneself obligation according to changing the loan contract after, lender has authority to ask borrower shifts to an earlier date refund.
In a case, the court thinks: "China business gold brings company commitment at refund shifting to an earlier date before August 9, 2010, diao Sujin also grants to this in order to approbate, and with this " affirmatory book " for the basis company of requirement China Shang Jinan shifts to an earlier date refund, reason ought to maintain both sides to already was reached to this reimbursement deadline acceptability. ... right now, the right obligation that Diao Sujin and China business gold bring a company concerns also merit this " affirmatory book " tie, and no longer contract of applicable original loan. And no longer contract of applicable original loan..
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