Basis " contract law of People's Republic of China " the relevant provision of dozenth chapter, loan contract, it is party agreement one party the monetary property jib of will certain sort and amount gives other places, other places returns the contract that is the same as amount money with sort at be being returned inside proper time. Among them, the one party that provides a money weighs usurer, suffer the one party that gets a money to weigh borrower. Loan contract weighs leasehold contract again. Usurer and borrower are reached acceptability, contract of the loan that finish.
But be not all loan contracts is effective, so, what loan contract is invalid? Should invalid loan contract manage like where again?
▌ one, borrow (borrow money) what does the case with invalid contract have?
(One) basis " a certain number of opinions that top people court hears leasehold case about people court " the 14th regulation: "Have one of following state, people court ought to maintain civilian leasehold contract to disable: (One) set take fund of financial orgnaization credit usury turns lend borrower, and the;(that borrower knows beforehand or ought to know 2) with to other company leasehold perhaps collect money to this unit worker obtained fund turns again borrow borrower to seek profit, and the;(that borrower knows beforehand or ought to know 3) prophet of lend human affairs or ought to know borrower loan to be used at violating guilty activity to still offer loan;(4) violate a society of Gong Xuliang common. And the;(that borrower knows beforehand or ought to know 3) prophet of lend human affairs or ought to know borrower loan to be used at violating guilty activity to still offer loan;(4) violate a society of Gong Xuliang common..
Afore-mentioned regulations were listed in civilian leasehold activity, the case of 5 kinds of invalid and leasehold contracts, specifically:
1, set take fund of financial orgnaization credit usury turns lend borrower, and the loan contract that borrower knows beforehand or ought to know is invalid. " the announcement that bank of people of total bureau of supervisory government of market of the Ministry of Public Security of committee of supervisory management of insurance of Bank of China, People's Republic of China, nation, China safeguards economic finance order to concern item about normative folk leasehold behavior " (〔 of the silver-colored hair that keep watch 2018 〕 10) the 4th regulation: "Civilian leasehold activity must abide by the concerned regulation of state law code strictly, abide by help each other of one's own accord, the principle of honest credence. Folk is leasehold in, the capital of lender must be his the own reserves of lawful income, prohibit absorbing or covert absorb other capital to be used at leasehold. Folk is leasehold produce issue, ought to according to " top people court about trying statute of comfortable use of civilian leasehold case the regulation of a certain number of problems " (law commentate 〔 2015 〕 18) processing. Ought to according to " top people court about trying statute of comfortable use of civilian leasehold case the regulation of a certain number of problems " (law commentate 〔 2015 〕 18) processing..
Senior people court is in Guizhou Province try village of bottom of general of experting county of Bi Jie area leasehold dispute of folk of effect of flourishing colliery, Xu Xiao thinks when one case: "" top people court about trying statute of comfortable use of civilian leasehold case the regulation of a certain number of problems " the 14th the first the first ' set take fund of financial orgnaization credit usury turns lend borrower, and borrower knows beforehand or ought to know ' regulation, flourishing colliery did not refer appellant effect of dawn of Xu of evidential proof appellee is to cover take fund of financial orgnaization credit usury turns lend borrower and borrower prophet of Huang Kejue thing or ought to know. Accordingly, party just signs each " loan contract " , " compensatory agreement " , " compensatory contract " fasten each true meaning to express, lawful and effective, to all just having legal sanction each. " [afore-mentioned content are picked from Guizhou Province senior people court (2017) Guizhou civilian eventually 686 civil judgment. ]
2, with to other company leasehold perhaps collect money to this unit worker taking fund turns again borrow borrower to seek profit, and the loan contract that borrower knows beforehand or ought to know is invalid. " the announcement that bank of people of total bureau of supervisory government of market of the Ministry of Public Security of committee of supervisory management of insurance of Bank of China, People's Republic of China, nation, China safeguards economic finance order to concern item about normative folk leasehold behavior " (〔 of the silver-colored hair that keep watch 2018 〕 10) the 5th regulation: "Severe blow is used absorb the public illegally deposit, covert absorb the public to collect money illegally deposit capital extends folk borrows money. Severe blow with be being imprisoned intended harm, illegally, affront, threaten, minatory, annoy wait for illegal means to urge receive loan. Severe blow is covered take fund of financial orgnaization credit, again usury turns borrow. Severe blow is faced extend illegally in school student loan, extend without appoint utility loan, or it is a name in order to offer goods of service, sale, accrual of actual collection high specified number (charge) covert extend loan behavior. Orgnaization of forbidden banking finance serves as main member from personnel of course of study or control a person actually, begin the folk that has an organization leasehold. Begin the folk that has an organization leasehold..
Zhejiang saves senior people court to build installation engineering company and Zhejiang in cognizance stage city course of study of buy of 10 thousand state limited company, Zhejiang 9 vessels are industrial the company leasehold issue such as limited company thinks when one case: "Although fasten inward ministry worker to collect money,Tai Jianan company advocates his lend gives company of 10 thousand nation 16 million yuan of money, but " loan agreement " loan of conventional experience case ceases to not have loan, tai Jianan company is nonexistent turn borrow inexistence case, experience case is leasehold the contract is lawful and active. Think to this this academy, in this case, although Tai Jianan company was signed with company of 10 thousand nation " project of fortune name garden 2 period engineering construction contract " , be in signed ever since " loan agreement " , the agreement gives company of 10 thousand nation 50 million yuan to be used at fortune name garden without breath loan by Tai Jianan company 2 period the development construction of the project. But, this project all the time not start working, both sides signed on Feburary 20, 2012 " loan (assure) compensatory agreement " in agreed " if the project is in on August 28, 2012 still cannot of normal go into operation, tai Jianan company has authority to remove contract, all loan interest leads 2% computation by monthly interest since the day from lend " , and the partial capital that bilateral party all affirms loan of Tai Jianan company is fastened to worker of its company interior to collect money. Basis " top people court about hearing civilian leasehold case applicable law the regulation of a certain number of problems " the 14th (2) regulation, this case is accorded with " collect money to this unit worker taking fund turns again borrow borrower to seek profit, and borrower knows beforehand or ought to know " case, should hold experience record lawfully leasehold contract is invalid. " [afore-mentioned content are picked save senior people court from Zhejiang (2016) short for Zhejiang Province civilian eventually 484 civil judgment. ]
3, the loan contract that lender knows beforehand or ought to know borrower loan to be used at violating guilty activity to still provide loan is invalid.
Court of the 5th intermediate people is in Chongqing city leasehold dispute of folk of cognizance plum rainbow, Wang Na and Chen Kun annals thinks when one case: "To Chen Kun to accuser plum rainbow, Wang Na annals offerred 7 million yuan to put borrowed fact external with Yu Chenkun annals, according to having evidence and Chen Kun annals approbates Xiang Yuan to solicit borrow or lend money 7 million yuan of capital and the allegation that did not remand, this academy gives lawfully affirm. But accuser knows perfectly well Chen Kun annals to extend external usurious and provide loan fund, although was not maintained to be crime, but still belong to damage a society the behavior of public interest, basis " contract law of People's Republic of China " fiftieth 2 regulation ' have one of following state, the contract is invalid: (4) damage a society public interest; ' reason is graceful to accuser Li Hong, king 7 million yuan behavior should hold loan of Xiang Chenkun annals to disable. " [afore-mentioned content are picked from Chongqing city court of the 5th intermediate people (2014) change 5 Sino-French civilian first word the 00676th civil judgment. ]
4, the loan contract that violates convention of fine of social public order is invalid. " contract law of People's Republic of China " the 7th: "Party concludes, fulfil a contract, ought to abide by law, administrative regulations, esteem social morals, do not get disturbed socioeconomy order, damage a society public interest. Damage a society public interest..
(2) outside removing afore-mentioned condition, basis " contract law of People's Republic of China " fiftieth 2 regulations that reach concerned law, code, loan (borrow) the case with invalid contract still includes the following kinds of state:
1, the loan contract that is not written form to sign is invalid () of civilian leasehold except. " contract law of People's Republic of China " 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. The content of loan contract includes loan sort, money to plant, the clause such as utility, amount, interest rate, deadline and reimbursement means. The content of loan contract includes loan sort, money to plant, the clause such as utility, amount, interest rate, deadline and reimbursement means..
2, unwell case causes usurer principal part loan contract is invalid. " general rule of loan of Chinese people bank " the 21st regulation: "Usurer must approve management loan business via Chinese people bank, bank of hold China people issues " licence of financial orgnaization legal person " or " financial orgnaization business licence " , and via industrial and commercial administration sectional approve is registered. And via industrial and commercial administration sectional approve is registered..
3, because disobey loan contract content,bring about loan contract to disable. " commercial banking law of People's Republic of China " thirtieth 7: "The commercial bank borrows money, ought to conclude with borrower written contract. The any other business that the contract ought to agree means of deadline of utility of loan sort, loan, amount, interest rate, reimbursement, reimbursement, responsibility of breach of contract and both sides think to need to agree. " " loan contract rules " the 6th: "Loan contract should have following article: One, loan sort; 2, loan utility; 3, loan amount; 4, ; of loan interest rate 5, ; of loan time limit 6, reimbursement financing source and reimbursement means; 7, assure clausal; 8, ; of responsibility of breach of contract 9, the other clause that party both sides decides. " " general rule of loan of Chinese people bank " the 24th: "To the limitation of usurer: One, of loan extend must carry out strictly " commercial banking law of People's Republic of China " thirtieth is in debt 9 times about asset the concerned regulation of scale management, the 40th extends to relation person about be not being gotten credit, extend to relation person assure the condition of loan does not get excel other borrower is congener the regulation of loan requirement. 2, the person that borrower has one of following state, must not extend to its loan: () do not have this general rule the;(of the qualification that the seventeenth place sets the 4th rule and condition 2) the production, ;(that manage or invests product of illicit of national proclaimed in writing, project 3) the;(that violates regulation of national exchange control 4) construction project sets by the country ought to, not pay off is original loan debt, fulfil original loan debt or offer the;(that assures accordingly 7) have other and serious violate management act. 3, approve without Chinese people bank, must not extend to the natural person the loan that foreign currency money plants. 4, self-supporting loan and specific loan, except by Chinese people bank formulary plan receives interest besides, not any collection is other charge; entrust loan, except by Chinese people bank formulary plan receives poundage besides, not any collection is other charge. 5, must not give client pay for sb and expect to be repaid later fund, the country has formulary except additionally. 6, control credit strictly, active promotion assures loan. Active promotion assures loan..
4, because con, threatening method is ordered,sign a contract, the contract that harms national interest is invalid. " contract law of People's Republic of China " fiftieth 2: "Those who have one of following state, the contract is invalid: (One) one party concludes with con, threatening method contract, damage national interest; "
5, because acting contract is invalid,bring about loan contract to disable.
6, because of great misunderstanding or show the contract that loses fairness to conclude can apply for cancel because of one party and affirm via affirming mechanism and after cancel, loan contract is invalid.
7, the loan contract that covers illegal purpose to conclude with legal form is invalid. " contract law of People's Republic of China " fiftieth 2: "Have one of following state, the contract is invalid: (3) mask illegal purpose; with legal form "
8, ill will is colluded with, the loan contract that harms country, collective or interest of the 3rd person is invalid. " contract law of People's Republic of China " fiftieth 2: "Have one of following state, the contract is invalid: (2) ill will is colluded with, damage country, collective or; of interest of the 3rd person "
9, damage a society the loan contract of public interest is invalid. " contract law of People's Republic of China " fiftieth 2: "Have one of following state, the contract is invalid: (4) damage a society public interest; " " general rule of civil code of People's Republic of China " the 7th: "Civil activity ought to respect social morals, must not damage a society public interest, disturbed socioeconomy order. Disturbed socioeconomy order..
▌ 2, the processing of invalid loan contract.
To invalid loan contract, should distinguish according to invalid different situation treat:
(One) not was suspected of violating crime, ought to return gold of repayment of capital. " contract law of People's Republic of China " fiftieth 8 regulations: "The contract disables or by cancel hind, because of the property that this contract acquires, ought to give return return; to cannot be returned return or not was necessary to return 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 responsibility severally. Ought to assume corresponding responsibility severally..
(2) loan is used at guilty activity, ought to give lawfully capture. " does top people court implement general rule of civil code of < People's Republic of China about carrying out > the opinion of a certain number of problems " : ? Does Dong of bully call on show shaddock of of of Ping of of form of ㄐ of シ of Nai of an ancient nationality in China of discharge of another name for Jiangxi Province of scene of radon of crab ⑾ bell to cast aside moisture in the soil of Mei model to inspect of of cease of word of show off of horsefly of ㄔ of ㄍ of younger sister dome to suckle Ping of of ǎ of Suo of Gu of of Xi a surname to circle Ge ⒃ Yu suffers from talk in one's sleep? Dian of Sui ⒕ laborious! ?
(3) the accrual processing after disabling about the contract. Current, law has no specific provision, but tell from legal principle, contract of the department after the contract is maintained to disable from only then invalid, both sides did not establish leasehold relationship, the property that acquires because of the contract ought to give return still. Fault just ought to compensate for what without fault square loss; both sides all has fault, ought to assume corresponding responsibility severally. Below the case that in folk leasehold contract disables, the both sides when most circumstance is foregone the condition that perhaps should know, accordingly both sides all has fault, the court won't support the accrual demand of accuser commonly. But, although the court does not support the accrual request with invalid contract, but can ask to pay plaintiff from the interest during returning borrow or lend money is returned to the accused after sueing, should take up as capital cost presses a bank by the accused congener loan interest rate calculates the corresponding period to pay.
