Grassroots lawyers also have spring

Chapter 592 Is inter-enterprise lending legal?

"Then hang up quickly, to save me from being criticized by them next time I go to your company. If I have something to say at home, I will hang up first." After Wang Chuan finished speaking, another burst of laughter came from the phone.

At 40 o'clock in the evening, Wang Chuan came to the Beiping restaurant. As soon as he entered the door, he saw Shen Datou talking with a shrewd looking thin man in his [-]s.

"Lawyer Wang, come quickly, this is the friend I told you about, President Peng, Peng Dahua. President Peng, this is my buddy, lawyer Wang Chuanwang." Shen Datou introduced.

"Lawyer Wang, it's a pleasure to meet you! Mr. Shen mentioned you a long time ago, saying that your professional ability is first-class, and your character is undisputed. Sit down!" Mr. Peng got up and shook hands with Wang Chuan and smiled.

"Boss Peng is over the top!" Wang Chuan said with a smile.

"I ordered some of their specialties first, and you can order a few more dishes after looking at the recipe." Shen Datou said and handed the recipe to Wang Chuan.

Wang Chuan ordered another dish and put the recipe aside: "Mr. Peng, Mr. Shen said that you have some questions to consult, can you explain in detail?"

At this time, the waiter brought up the previously ordered dishes one after another.

"Lawyer Wang, let's eat first and chat while eating!" Mr. Peng laughed.After speaking, he handed Wang Chuan a bottle of drink: "I know you don't drink alcohol, too much alcohol will hurt your health, so drink some of this."

After the five flavors of the dishes, Mr. Peng told about his company.

It turned out that Mr. Peng's company lent 5000 million yuan to a company through a bank entrusted loan. This company is engaged in real estate. The owner of the company is not very familiar with Mr. Peng. They were introduced by a friend at a dinner know.

The real estate company mortgages the land under its name to the bank that issued the entrusted loan (in some areas, the land can only be mortgaged to financial institutions, so when issuing entrusted loans, the real estate company is generally required to mortgage the land and real estate to the bank that issued the entrusted loan, and not the real patron).

(Bank entrusted loan: that is, bank entrusted loan: According to Article [-] of the "Commercial Bank Entrusted Loan Management Measures", an entrusted loan refers to the fact that the client provides funds, and the commercial bank (trustee) determines the borrower and purpose according to the client. , amount, currency, term, interest rate, etc. on behalf of the loan, assisting in the supervision of use, assisting in the recovery of loans, excluding entrusted loans under cash management items and entrusted loans under housing provident fund items.

The client refers to legal persons, unincorporated organizations, individual industrial and commercial households and natural persons with full capacity for civil conduct that provide entrusted loan funds.

Why do you have to issue entrusted loans through banks?You must know that banks never provide free services, and you will have to pluck your hair if you go too far!Even if an iron rooster walked around the bank, he would have to pick up some iron filings to pay the service fee.

According to the provisions of Article [-] of the "Interim Regulations of the People's Republic of China on Banking Management", non-financial institutions are prohibited from operating financial business, and lending is a financial business, so non-financial institutions are not allowed to borrow from each other.

According to the above-mentioned regulations, before [-], the basic idea of ​​the courts in adjudicating inter-enterprise loans was: enterprise loan contracts violated relevant financial regulations and were invalid contracts.

After the court finds that the loan contract between enterprises is invalid, it will judge the borrower to return the principal and pay the bank loan interest for the same period; the lender will collect the interest that the lender has obtained or agreed to obtain, and the People's Bank of China will impose a fine on the lender based on the illegal income. A fine of more than one time but less than five times.

Once the money is lent out, neither the lender nor the borrower will benefit once they go to court. Therefore, out of compliance needs and for the safety of funds, mutual lending between enterprises generally chooses to issue entrusted loans through banks or through way of trust loans.

In [-], Xi Xiaoming, vice president of the Supreme Court, delivered a speech at the National Commercial Adjudication Conference, pointing out that temporary fund borrowing for production and operation needs between enterprises that do not have the qualifications to engage in financial business, such as providing funds If one party does not take financing as its usual business and does not violate the mandatory provisions of the state's financial control, the loan contract should not be deemed invalid.

On August 2015, 8, in order to adapt to economic development, the Supreme People's Court held a press conference and officially released the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases" (Fa Shi [6] No. 2015). The trial thinking of the court in the trial of inter-enterprise lending cases has been changed to: as long as the lending behavior does not fall under Article 18 of the "Contract Law" or the above-mentioned Article No. 14, it is valid and protected by law.

Book friends who are interested in the above regulations can ask Du Niang, and the specific regulations will not be repeated.

The time Mr. Peng lent funds was when the supervision was the strictest, so in order to comply with the regulations, he had to borrow funds through bank entrusted loans)
After the loan expired, the real estate company did not pay the money, and Huatian Financial Holdings applied to the court for compulsory execution based on the notarized documents of the creditor's rights and the execution certificate with compulsory execution effect.

But when the judge went to enforce the enforcement, he found that the property and land had been seized first, and more than 600 million in the company account had also been enforced.

Mr. Peng felt a little strange. When he sent someone to due diligence the real estate company before, he didn't find that the other party had such a large amount of debt, so he asked the lawyer to check the judgment document on which the transfer of the money was based.The judgment was issued a week before the judge went to the other party's company to enforce it, and it took less than a month from the filing of the case to the trial. The judgment was very rough and the investigation was not very clear.So Mr. Peng had doubts about the verdict.

Wang Chuan read the verdict handed over by Mr. Peng.

"Mr. Peng, I also think there is a problem with this judgment. The judge did not investigate the lender's ability to lend, nor did he investigate the source of funds and the method of fund delivery.

Moreover, the defendant did not have any defense, and the plaintiff admitted whatever the defendant said, which is very strange!I feel like this case involves sham litigation. "Wang Chuan shook his head and said.

"Lawyer Wang, can you explain to me what a false lawsuit is? Is there any way for your lawyers to judge false lawsuits in the process of handling a case?" Mr. Peng asked with interest, his eyes lit up.

Wang Chuan thought for a while and said: "According to the "Provisions of the Supreme People's Court Concerning Several Issues Concerning the Application of Law in the Trial of Private Lending Cases" (this provision came into effect on September [-], [-], borrowed here) and judicial practice, At present, the false litigation methods involved in private lending can be roughly summarized into ten manifestations.

[-]. The lender obviously does not have the ability to lend.

It is necessary to investigate whether the private loan lender actually lends the loan, and then determine whether the private loan dispute lawsuit between the parties is a false lawsuit, and whether the lender has the ability to perform the contract. "

(End of this chapter)