Came on December 20, 2017 on December 30, jia Mou to me 4 borrow or lend money of company add up to 8 million yuan. My company turns money Zhang delivered to Jia Mou, because much place is in debt,show Jia Mou miss. Via me company investigation discovers Jia Mou is the open person of some trading company and legal representative, after Jia Mou gets the borrow or lend money of my company, the trading company that turns loan into its open instantly is used at extending worker pay, pay water and electricity fee, pay payment for goods to wait, under one's name of this trading company has two place business liquidate of room value enough principal and interest of my company borrow or lend money.
Ask: My company asks to forensic suit the company of Jia Mou open and Jia Mou borrow money to assume collective reimbursement responsibility to place, should deny by support?
The lawyer replies:This lawyer thinks: Combine the evidence that you gather, the evidence that Jia Mou loan uses at producing an enterprise to manage is sufficient, according to active folk leasehold judicatory explains, you have authority to advocate the company of some and its open assumes armour to repay jointly responsibility.
Relevant law:" civilian leasehold judicatory explains "
The 23rd law of enterprises represents a person surely or chief signs civilian leasehold contract with company name and lender, lender, enterprise or its partner can prove what to lend money to be used at industry legal representative or chief individual to use, lender request represents law of enterprises the person surely or chief labels corespondent or of the 3rd person, people court should grant to allow.
Law of enterprises represents a person surely or chief signs civilian leasehold contract with individual name and lender, what lend money to be used at company production to manage, lender requests enterprise and individual to assume responsibility jointly, people court should grant to support.
Case is referenced:(2018) top magic art civilian explain 2634
Solid Wu suggests:About " illicit borrow public " , " fair borrow illicit with " , how is creditor chased after effectively duty problem. The understanding in solid Wu agrees very much, basically have 3 kinds of understanding:
The first kind understands, hold to contract relativity principle strictly, loan contract carries bright borrower assumes responsibility, using paragraph person actually is not contract main body should be chased after countervail, but cannot assume directly repay responsibility;
The 2nd kind understands, basis " contract law " the 402nd regulation with the 403rd, combinative fact undertakes distinguishing treatment: 1, if lender is in,use a person actually what loan knows perfectly well namely when signing loan contract to be not nominal borrower, the contract carries bright nominal borrower is procuratorial only, direct tie uses loan contract actually paragraph person and lender; 2, if nominal borrower is informed to lender in after the event,have what use paragraph person actually additionally, basis " disclose option " regular, creditor can be in both between the choice holds the right firstly, and once make,should choose to must not be changed!
The 3rd kind understands: "Fair borrow illicit with " " illicit borrow public " , no matter the angle analysis from creditor is " beforehand is known perfectly well " or " after the event is informed " , legal representative (or chief) form joint liability to assume with company both, assume joint liability to debt.
" civilian leasehold judicatory explains " after coming on stage, this regulation divides a paragraph the 23rd times to be opposite " fair borrow illicit with " and " illicit borrow public " two kinds of case made specific provision, should prove only fair borrow illicit use or illicit borrow public fact, can ask already both and collective assume responsibility. Explain the significant increase that guaranteed loan originally
