Trial court:Dalian Ganjingzi District People's Court

Case No:(2022) Liao 0211 Min Chu No. 7240

Cause of action:Private lending disputes

Date of Referee:October 17, 2022

Dalian Ganjingzi District People's Court

civil judgment

(2022) Liao 0211 Min Chu No. 7240

The plaintiff:Yang Mou, female,Born on August 27, 1969, Han, Xigang District, Dalian City, Liaoning Province.

Authorized litigation agent: Ruan Shuming, a lawyer of Liaoning Tianying Law Firm.

Defendant: Dalian Zhishi Enterprise Management Center Partnership (limited partnership), unified social credit code9121021MA0YEHQN4G, domicile is No.5, Floor 15, No.7 Zhonghua West Road, Ganjingzi District, Dalian City, Liaoning Province.

Managing Partner:Liu Mou, Department Manager.

Authorized agent ad litem:Tian Mou Cheng, male,Born on April 22, 1980, Han, registered residence in Shahekou District, Dalian City, Liaoning Province.

The accused:Tian Mou Cheng, male,Born on April 22, 1980, Han, registered residence in Shahekou District, Dalian City, Liaoning Province.

Defendant: Dalian Guangyuyuan Investment Management Co., Ltd., Unified Social Credit Code91210200341079693U, domicile is No.2, Floor 2, Unit 2, 841 Changjiang Road, Shahekou District, Dalian City, Liaoning Province.

Legal Representative:LeeEast, Department of the chairman.

Authorized agent ad litem:Tian Mou Cheng, male,Born on April 22, 1980, Han, registered residence in Shahekou District, Dalian City, Liaoning Province.

PlaintiffYang MouWith the defendant Dalian Zhishi Enterprise Management Center partnership (hereinafter referred to as the defendant Zhishi Enterprise), the defendant.Tian Mou ChengThe defendant Dalian Guangyuyuan Investment Management Co., Ltd. (hereinafter referred to as the defendant Guangyuyuan Company) private loan dispute case, the court inAfter the case was accepted on May 16, 2022, the ordinary procedure was applied in accordance with the law, and the trial was conducted in public. PlaintiffYang Mouand its attorney, Ruan Shuming, to appear in court to participate in the proceedings. Defendant Zhishi Enterprise, DefendantTian Mou ChengAnd the defendant Guangyuyuan Company was summoned by the court's subpoena, and did not appear in court without justifiable reasons. The court held a hearing in absentia according to law. The case has now been closed.

PlaintiffYang MouLitigation request to the Court (after the change):1, ordered the defendant Zhishi enterprise to return the loan principal of 60,000 yuan; 2. Pay the agreed interest of 50,000 yuan ×(12%/12)× 33 months = 16,500 yuan +10,000 yuan ×(5%/12)× 33 months = 1,375 yuan; 3. Pay the plaintiff's rental fee from March 9, 2020 to March 8, 2022 20,400 yuan/year × 2 years = 40,800 yuan; 4. DefendantTian Mou ChengIndividuals are jointly and severally liable for the above-mentioned debts;5, the defendant Guangyuyuan company to assume the responsibility for the above-mentioned debt. Facts and Reasons: On November 20, 2019, Defendant Zhishi Enterprise's Actual Executive PartnerTian Mou ChengFind the plaintiff, claiming that the enterprise borrowed money from the plaintiff due to business needs.60,000 yuan, promised 50,000 yuan to pay 12% annual interest rate, 10,000 yuan to pay 5% annual interest rate, the maturity date is September 1, 2021, debt service. The defendant promised that if the borrower defaulted, he would pay the legal fees, transportation fees, litigation fees and other litigation-related expenses paid by the lender for the protection of his rights. Near the repayment period, the plaintiff contacted the manager several times due to rigid purchase.Tian Mou Cheng, prompt repayment according to the contract,Tian Mou ChengAt first, he answered the phone and replied to WeChat, but later he ignored the plaintiff. The plaintiff hired a lawyer to negotiate with the defendant in the hope of reconciliation, and repeatedly made concessions,On January 5, 2022, the defendant issued a "repayment plan" and paid the first principal of 5,000 yuan at the end of the month, but did not pay the second, claiming that the enterprise had no money. In view of the defendant's repeated breach of contract and complete loss of credit, he filed a lawsuit to protect the legitimate rights and interests of the plaintiff.

Defendant Zhishi Enterprise and DefendantTian Mou ChengThe defendant Guangyuyuan Company did not appear in court and did not submit a written reply.

after trial, it was found that,May 10, 2021, Plaintiff (Lender) and DefendantTian Mou Cheng(Borrower) sign a debit note, which reads that the Borrower, due to business needs, is in.On November 20, 2019, the principal amount of the loan was 50,000 yuan, with an annual interest rate of 12%, and the principal amount was 10,000 yuan, with an annual interest rate of 5%. The two parties agreed that "all principal and interest must be paid before September 1, 2021. If the borrower fails to repay the loan when due, all expenses (including but not limited to legal fees, legal fees, transportation expenses, preservation fees, appraisal fees, etc.) paid by the lender to safeguard the legitimate rights and interests shall be borne by the borrower. If there is a dispute over this matter, the lender will rent the house every month and pay 2000 yuan the entire rent every month until the principal and interest is paid." The debit note is also stamped with the official seal of the defendant's Zhishi enterprise.

On January 5, 2022, the defendant Zhishi Enterprise, as the borrower, issued a repayment plan to the plaintiff, which read "On November 20, 2019, Dalian Zhishi Enterprise Management Center Partnership (Limited Partnership)Yang MouBorrowings for the Company's investment in the Hongfeng Garden Anju real estate project in Ganjingzi District, with a commitment to pay the corresponding interest on the amount, respectively,Yang MouAgree to lend RMB 60 million, of which the company promises to pay an annual interest rate of RMB 50 million.12% interest, 10,000 yuan at an annual interest rate of 5%, the debt service date is May 1, 2021. After maturity, for various reasons, the company did not recover the investment and should be the lender.Yang Mourequest, the company issued an IOU, promising:Return the principal and agreed interest of $60,000 before September 1, 2021, and the Company is willing to bear the burden of another default.Yang Mourights costs, including but not limited to legal fees, legal fees, transportation fees, preservation fees, appraisal fees, etc., and other commitments due to the lender.Yang MouWait for money to buy a house, the company is willing to bear the overdue period.Yang MouThe house rent2000 yuan/month, until the date of payment of principal and interest, partnerTian Mou ChengSigned.After maturity on September 1, 2021, the Company has not recovered its investment and the lenderYang MouA lawyer was hired to file a lawsuit with the People's Court of Ganjingzi District, requesting the corresponding payment as contracted. The company's investment in the Ganjingzi District Hongfeng Garden Anju real estate project has long been completed, the relevant procedures have been completed, only with the construction party for the transfer of property rights procedures, the recovery of investment has been barrier-free. By and LenderYang MouNegotiate and formulate the repayment plan as follows:From January to March 1.2022, the company repaid 5,000 yuan per monthYang MouDesignated account, Bank of Dalian6230 ×××× 1720, totaling 15,000 yuan (including lawyer's fee of 5,000 yuan). In April 2.2022, the company repaid 10,000 yuan. In May 3.2022, the company repaid 20,000 yuan. In June 4.2022, the company repaid 20,000 yuan. 5. Interest and rent cannot be sold because the house has not yet been transferred and the funds have yet to be returned. The repayment time will be discussed separately." Defendant Zhishi Enterprise stamped with the official seal of the borrower, the defendantTian Mou ChengSigned at the partner, the defendant Guangyuyuan Company stamped the official seal at the guarantor. The end of the repayment agreement also contains the following."After further negotiation, item 3 of the repayment plan is changed to: 10,000 yuan in May 2022, item 4 is changed to: 10,000 yuan in June 2022, item 6 is added: 10,000 yuan in July, item 7 is added: 10,000 yuan in August, totaling 15,000 yuan. The account number provided is owned by Ruan Shuming and is the lender.Yang MouAuthorization.The plaintiff said that after the above repayment plan was signed, the defendant only repaid 5000 yuan on January 28, 2022, and the remaining amount was not repaid.

The above facts, based on the IOU, repayment plan and trial record provided by the plaintiff, have been cross-examined by the court and reviewed by the court, and can be accepted.

The Court believes that legitimate lending relationships are protected by law. Based on the plaintiff's statement and the IOU and repayment plan it provided, it can be determined that the case is involved.The loan of 60000 yuan was borrowed by the defendant, Zhishi Enterprise, and was the borrower involved in the loan. The "Repayment Plan" formed on January 5, 2022 is based on the true intention of the parties, and each party shall perform its respective obligations in accordance with the agreement. According to the agreement of the repayment plan, the defendant Zhishi enterprise shall repay 5,000 yuan per month from January to March 2022 and 10,000 yuan in April 2022. However, the defendant Zhishi enterprise defaulted in February 2022 and failed to perform according to the repayment plan. The plaintiff has the right to cancel the repayment plan and require the defendant Zhishi enterprise to repay all the remaining outstanding loans. The 5,000 yuan repaid by the defendant's Zhishi enterprise shall be regarded as the repayment of the lawyer's fees, so the outstanding loan amount of the defendant's Zhishi enterprise is 60,000 yuan, and the court shall grant the plaintiff's request for the defendant's Zhishi enterprise to repay the loan of 60,000 yuan. Regarding the plaintiff's interest claim and the claim requiring the defendant Zhishi enterprise to pay the rent, the court believes that the rent should be regarded as the plaintiff's loss voluntarily borne by the defendant Zhishi enterprise. regarding the time when the defendant Zhishi enterprise should pay the rent, it is stipulated in the iou on may 10, 2021 that if there is a dispute over this matter, the defendant shall pay another 2,000 yuan per month, the Repayment Plan also states that "the company is willing to bear the overdue period."Yang MouThe house rent2,000 yuan, until the date of paying off the principal and interest ". According to the above contents, it can be determined that the defendant Zhishi Enterprise shall start to pay the rent loss from September 2, 2021 after the repayment period stipulated in the debit note expires. The plaintiff's request for the defendant Zhishi Enterprise to bear the rent loss from March 9, 2020 to September 1, 2021 has no factual and legal basis, and the court will not support it. The defendant Zhishi enterprise shall pay the interest and overdue interest during the loan period from November 20, 2019 to September 1, 2021 to the plaintiff. The parties have not agreed on the overdue interest. The plaintiff claims that the defendant pays the interest during the period of capital occupation according to the interest rate during the loan period in accordance with the law, and the interest rate does not exceed the upper limit of legal protection, and the court will give it permission, therefore, the interest payable by the defendant Zhishi Enterprise for the above-mentioned time is 11,611 yuan (50,000 yuan × 12% ÷ 365 days × 652 days +10,000 yuan × 5% ÷ 365 days × 652 days). From September 2, 2021, the defendant Zhishi Enterprise promised to bear the plaintiff's rent loss of 2,000 yuan per month. The plaintiff also claimed overdue interest. As the loan involved in the case occurred on November 20, 2019, according to the provisions of the second paragraph of Article 31 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in Hearing Private Loan Cases (the second amendment in 2020), for the interest portion from August 20, 2020 to the date of the loan return date, the standard calculation of interest rate protection under this provision at the time of prosecution shall apply. According to Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases (Second Amendment in 2020), lenders may claim overdue interest, liquidated damages or other expenses together, but the total shall not exceed four times the quoted interest rate of the one-year loan market at the time of the establishment of the contract, I .e. 16.6 per cent per annum. The plaintiff's above-mentioned claim of exceeding 16.6 per annum shall not be supported by the court, therefore, the plaintiff claimed that the defendant Zhishi Enterprise should pay a reasonable part of the above expenses from September 2, 2021 to March 8, 2022. The court approved the payment of 5,130 yuan (60,000 yuan × 16.6%÷ 365 days × 188 days). The plaintiff also required the defendant Zhishi Enterprise to pay overdue interest until August 2022. The overdue interest calculated by the court to be 2,743 yuan (50,000 yuan × 12% ÷ 365 days × 154 days +10,000 yuan × 5% ÷ 365 days × 154 days) on August 9, 2022, the date of the trial.

With regard to the plaintiff's claim that the defendantTian Mou ChengThe plaintiff claims that the defendant is jointly and severally liable.Tian Mou ChengHe is a partner of the defendant Zhishi Enterprise and shall be jointly and severally liable for the debts of the defendant Zhishi Enterprise in accordance with the provisions of the the People's Republic of China Partnership Enterprise Law. Article 90 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law stipulates that the parties concerned shall provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are refuted, unless otherwise provided by law. If the party fails to provide evidence or the evidence is insufficient to prove his claim of fact before the judgment is made, the party with the burden of proof shall bear the adverse consequences. The plaintiff claims that the defendantTian Mou Chengis a partner of the defendant's firm, and the evidence provided by him is that the defendantTian Mou ChengIn the "repayment plan" in the partner's signature, but the plaintiff provided the defendant's enterprise credit information bulletin did not reflect the relevant content, the plaintiff to request the defendant.Tian Mou ChengThe court will not support the lack of basis for joint and several liability.

With regard to the plaintiff's claim that the defendant Guangyuyuan Company shall bear joint and several guarantee liability, the second paragraph of Article 686 of the the People's Republic of China Civil Code stipulates that if the parties do not agree on the guarantee method or the agreement is not clear in the guarantee contract, they shall bear the guarantee liability in accordance with the general guarantee. The defendant Guangyuyuan Company affixed the official seal to the guarantor of the "Repayment Plan". According to the above-mentioned legal provisions, the defendant shall bear the guarantee liability in accordance with the general guarantee. The plaintiff's request for the defendant to bear the joint and several guarantee liability is insufficient, and the court will not support it.

Defendant Zhishi Enterprise, DefendantTian Mou ChengAnd the defendant Guangyuyuan company did not appear in court, as its right to waive the defense.

To sum up, Articles 686 and 687 of the the People's Republic of China Civil Code, Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (The second amendment in 2020) Articles 1, 25, 28 and 31, Article 147 of the the People's Republic of China Civil Procedure Law, and Article 90 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the judgment is as follows:

The 1. defendant Dalian Zhishi Enterprise Management Center Partnership (Limited Partnership) shall repay the plaintiff within ten days from the date of the legal effect of this judgment.Yang MouBorrowing principal60,000 yuan and paid interest, overdue interest and rent losses totaling 19,484 yuan.

The 2. defendant Dalian Guangyuyuan Investment Management Co., Ltd. assumes the general guarantee responsibility for the above-mentioned amount.

3. Dismisses PlaintiffYang Mouother claims.

If the above-mentioned obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delay shall be doubled in accordance with the provisions of Article 260 of the the People's Republic of China Civil Procedure Law.

Case acceptance fee2,774 yuan (paid in advance by the plaintiff), the plaintiff shall bear 987 yuan, the defendant Dalian Zhishi Enterprise Management Center Partnership (Limited Partnership) shall bear 1,787 yuan, and the defendant Dalian Guangyuyuan Investment Management Co., Ltd. shall bear the general guarantee liability.

If you are not satisfied with this judgment, you may, within 15 days from the date of service of the judgment, submit a petition of appeal to this court, submit a copy according to the number of the other party, pay the fee for accepting the appeal case, and appeal to the Intermediate people's Court of Dalian City, Liaoning Province.

The period of application for execution is two years.

Judge Zhao Liyan

October 17, 2002

Clerk Xiu Jianhua

The legal provisions cited in this case:

the People's Republic of China Civil Code

Article 686 The forms of guarantee include general guarantee and joint and several liability guarantee.

If the parties do not agree on the manner of guarantee in the guarantee contract or the agreement is not clear, they shall bear the responsibility for the guarantee in accordance with the general guarantee.

Article 687 If the parties agree in the guarantee contract that if the debtor is unable to perform the debt, the guarantor shall bear the responsibility for the guarantee, it shall be a general guarantee.

The guarantor of a general guarantee shall have the right to refuse to assume the liability of the guarantee to the creditor until the main contract dispute is not tried or arbitrated and the debtor's property is legally enforced, except in one of the following circumstances:

(I) the debtor's whereabouts are unknown and no property is available for execution;

(II) people's court has accepted the debtor's bankruptcy case;

(III) the creditor has evidence to prove that the debtor's property is insufficient to fulfill all the obligations or has lost the ability to fulfill the obligations;

(IV) the Guarantor waives in writing its rights under this paragraph.

Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (Second Amendment 2020)

Article 1 The term "private lending" as mentioned in these Provisions refers to the act of financing between natural persons, legal persons and unincorporated organizations.

Financial institutions and their branches established with the approval of the financial regulatory authorities to engage in loan business shall not be subject to these provisions in respect of disputes arising from the granting of loans and other related financial businesses.

Article 25 If the lender requests the borrower to pay interest at the interest rate agreed upon in the contract, the people's court shall support it, except where the interest rate agreed upon by both parties exceeds four times the market quotation rate for one-year loans at the time of the establishment of the contract.

The term""One-year loan market quotation rate" refers to the one-year loan market quotation rate issued monthly by the National Interbank Lending Center authorized by the People's Bank of China since August 20, 2019.

Article 28 Where there is an agreement between the borrower and the lender on the overdue interest rate, it shall be agreed upon, but not more than four times the market quoted interest rate for one-year loans at the time of the establishment of the contract.

If the overdue interest rate is not agreed upon or the agreement is unclear, the people's court may distinguish between different situations:

If the (I) neither agrees on the interest rate during the loan period nor on the overdue interest rate, the people's court shall support the lender's claim that the borrower shall bear the liability for default of overdue repayment from the date of overdue repayment with reference to the interest calculated by the standard interest rate quoted in the market for one-year loans at that time;

If the (II) has agreed on the interest rate during the borrowing period but has not agreed on the overdue interest rate, the people's court shall support the lender's claim that the borrower shall pay the interest during the period of funds occupation at the interest rate during the borrowing period from the date of overdue repayment.

Article 31 After the implementation of these Provisions, these Provisions shall apply to the new cases of first instance private lending disputes accepted by the people's courts.

For first-instance private lending cases newly accepted after August 20, 2020, if the loan contract was established before August 20, 2020, and the parties request to apply the judicial interpretation at that time to calculate the interest portion from the establishment of the contract to August 19, 2020, the people's court shall support it. For the interest portion from August 20, 2020 to the date of loan return, the interest rate protection standard stipulated in these regulations shall be applied at the time of prosecution.

After the implementation of these Provisions, if the relevant judicial interpretations previously made by the Supreme People's Court are inconsistent with these Provisions, these Provisions shall prevail.

the People's Republic of China Civil Procedure Law

Article 147 If a defendant, after being summoned by a summons, refuses to appear in court without justifiable reasons, or withdraws from court midway without the permission of the court, a judgment may be made by default.

Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law

Article 90 The parties shall provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are refuted, except as otherwise provided by law.

If the party fails to provide evidence or the evidence is insufficient to prove his claim of fact before the judgment is made, the party with the burden of proof shall bear the adverse consequences.