If there is sufficient evidence to prove that the behavior of the construction enterprise belongs to usury or professional lender, after the people’s court finds that the private loan contract is invalid, both parties shall return the property obtained in accordance with Article 157 of the general provisions of the civil law and Article 58 of the contract law.
Of course, the interest rate clause agreed in the contract is invalid.
However, from the development practice of private lending in recent years, if there is no regulation, the crisis of private lending financial market is easy to accumulate, but affect the whole construction industry.
The borrower shall return the loan and pay the interest loss during the period of fund occupation.
At present, there are no mandatory prohibitions in laws and judicial interpretations, which are generally recognized as effective.
Public security organs, procuratorial organs and people’s courts shall determine whether private lending constitutes a crime in accordance with the relevant provisions of the criminal law.
Your suggestions are helpful and enlightening to protect the legal financing behavior of construction enterprises and promote the healthy development of construction industry in our province.
As for how to determine whether the enterprise is engaged in regular lending business, we believe that the annual project contract amount, output value, loan amount, loan interest and other factors of the construction enterprise should be comprehensively considered in combination with the enterprise’s registered capital, working capital, loan amount, loan times within a year, the agreement on loan interest, the proportion of loan income in the enterprise’s income, the relationship between the lender and the borrower and so on In terms of financial data such as revenue, we can comprehensively determine whether the enterprise constitutes a regular lending business through the exercise of the right of free adjudication.
In practice, it is difficult to determine whether the enterprise is engaged in regular lending, whether from the burden of proof or the fact.
In judicial practice, due to the disputes arising from the financing behavior of the construction enterprise to the project contractor, the construction enterprise generally sues the contractor with the loan contract to return the loan principal and interest.
Therefore, for occasional and temporary loans made by enterprises with their own funds, appropriate fund occupation fees are charged at the same time.
Generally, the amount of loss shall be determined according to the bank loan interest rate.
In the handling of civil disputes, the people’s court, after preliminary examination, finds that it may meet the constitutive requirements of the crime, generally decides to reject the prosecution, and transfer the clues and materials suspected of the crime to the public security or procuratorial organ..
In the trial of specific cases, if the annual interest rate is too high, the people’s court generally makes adjustments in accordance with Article 26 of the provisions of the Supreme People’s Court on Several Issues concerning the application of law in the trial of private lending cases (hereinafter referred to as the “judicial interpretation of private lending”), so as to balance the interests of all parties and realize the optimal allocation of funds.
2) at the third session of the 13th Provincial People’s Congress, The provincial people’s Congress shall be handed over to our hospital for handling.
At present, it is difficult for formal financial institutions to meet this demand.
Reply of Zhejiang Higher People’s Court on recommendation No.
In order to solve the problems of production and operation, the temporary external loans of construction enterprises with idle funds have alleviated the capital demand pressure of the project contractor to a certain extent.
Generally, it does not meet the invalidity of the private loan contract stipulated in article 14 of the judicial interpretation of private lending, nor does it constitute the standard of usury and professional lender, Will not directly lead to invalid lending.
The use of borrowing to make up for the shortage of cash flow will turn into drinking poison to quench thirst.
The people’s court generally hears it according to the legal relationship of private lending.
As long as the enterprise’s lending behavior does not constitute illegal fund-raising, granting loans to the public and other violations of laws and administrative regulations, it is generally recognized as valid.
Both parties often have made clear agreements on the loan amount, term, interest rate, liability for breach of contract and other contents.
As for whether it constitutes a usury and professional lender.
2 of the third session of the 13th Provincial People’s Congress (zgfd [2020] No.
Usury lending and professional lenders are characterized by the non specificity of the borrowing object, the repeatability of lending behavior and the profitability of the borrowing purpose, which are different from the occasional and temporary external lending activities carried out by non-financial institutions and other organizations in reality.
The loan contract arises from the advance of construction projects.
It is common to “tear down east walls to make up west walls” after losing money, which will lead to a social lending trend.
103) Deputy Li wangrong: we have received your proposal that the provincial high court should timely issue the guidance on “correctly distinguishing the financing of internal contractors of construction enterprises from ‘usury lending’ and ‘professional lending’ (recommendation No.
It is quite difficult to determine whether the money lent by enterprises comes from bank credit, borrowed from other enterprises, or raised funds within the unit.
We attached great importance to this, organized relevant departments to conduct serious research and consultation, and communicated and solicited opinions with you.
The reply is as follows: with the vigorous development of the construction industry, the project contractor has a strong demand for funds.
If the party concerned can provide sufficient evidence to prove that the enterprise is engaged in regular lending business, its lending behavior shall be deemed invalid.
At present, it is necessary.
As for the loan contract between the construction enterprise and the project contractor, although the construction company advances the project funds for the actual constructor, which is similar to the lending behavior, the fundamental agreement of both parties is to complete a specific project for the purpose of the contract, rather than the construction enterprise making profits by lending funds.
If the lending object is the project contractor, the agreed interest of the lent funds complies with the law, and the actual purpose is also for the operation of the construction project, which belongs to the scope of autonomy of will and freedom of contract.
As for whether it may constitute a crime.
However, as a production and operation enterprise, if the construction enterprise takes regular lending as its main business or takes it as its main source of income, it may lead to the variation of the nature of the enterprise and qualitative change into a financial institution engaged in special lending business without the approval of the financial regulatory department.
After all, money is a kind of thing.
In addition, there is also a situation of “rip off” by the strong party in the contract, which is not conducive to the construction of a reasonable and orderly order in the construction industry.
