Brief facts of the case

Plaintiff Cao and defendants Ma and Chen are friends and neighbors, and Ma and Chen are husband and wife. Ma was unable to apply for a loan due to credit problems, so he asked Cao for help, and Cao borrowed 300,000 yuan from the bank in his personal name and signed a contract with a loan term of 36 months. Ma issued an IOU to Cao, and the two parties agreed that the principal and interest would be repaid by Ma, and Ma would transfer money to Cao, and Cao would repay the principal and interest to the bank on a monthly basis.

But unexpectedly, Ma did not repay the money after repaying the money to Cao several times, and the total repayment amount was more than 40,000 yuan. In order to recover the remaining loans, Cao sued Ma and his wife to the Changping Court, demanding that Ma repay all the loans and interest totaling 271,524.64 yuan and other expenses.

During the trial, Ma said that he borrowed money to open a car wash, but he caught up with his father's illness and spent part of the money for his father's medical treatment, and he was unable to continue to repay. Ma's wife, Chen, believes that although she said in a chat with Cao that she "admits the debt" and "will not repay the debt", she said it for Ma, and Ma's loan from Cao has nothing to do with her.

Heard by the courts

In this case, both parties agreed that the money involved in the case was obtained by Cao from a bank loan rather than his own funds, and that the borrowing violated the normative requirement that the source of funds for private lending should be his own funds, and that the loan relationship should be invalid, and that the loan obtained by Ma due to the loan relationship should be returned, but Cao still had to perform the financial loan contract between him and the financial institution.    

According to the relevant evidence, Ma knew the monthly repayment amount of the loan involved in the case, and had the transfer of repayment of the corresponding principal and interest. The principal and interest that Cao actually repaid to the bank as a result of the loan have been actually paid to the bank and should be borne by Ma. As for the principal that Cao has not yet repaid to the bank, it should be paid by Ma, but with regard to the corresponding interest, because the behavior of the two parties is essentially an arbitrage of financial loans for personal use of funds, which is an act of evading supervision and disrupting the financial order, both parties are at fault, and Ma has not repaid the loan to Cao for more than ten periods, resulting in a dispute between the two parties, and the court has determined that the interest on the loan that has not yet expired is calculated based on the current LPR one-year loan interest rate, and Cao should repay the loan to the bank in a timely manner within a reasonable period. to reduce losses for both sides.    

On whether Ma's loan is a joint debt of the husband and wife. Ma's loan occurred during the existence of his husband and wife relationship with Chen, and although the IOU was not signed by Chen, Chen repeatedly made it clear to Cao afterwards that words such as "I recognize this money" should be regarded as retroactive recognition and belong to the joint debt of the husband and wife, and Ma's repayment responsibility should be borne by both parties.    

The Changping Court made a comprehensive calculation based on the actual transfer amount, repayment amount and corresponding interest standards of the two people, and finally ruled that Ma and Chen should repay Cao's loan principal and interest losses, as well as the loan principal and interest losses that had not yet expired, totaling more than 250,000 yuan.

What the judge said

Private lending needs to be sharpened, borrowing and then lending to others can be called a "high-risk operation", and the slightest carelessness will fall into the quagmire. According to Article 13 (1) of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, a private lending contract that takes loans from financial institutions and re-lends them is invalid.    

Article 157 of the Civil Code of the People's Republic of China stipulates that after a civil juristic act is invalid, revoked or determined to be ineffective, the property acquired by the actor as a result of the act shall be returned; where it cannot be returned or there is no need to return it, compensation shall be made at a discounted price. The party at fault shall compensate the other party for the losses suffered thereby; Where all parties are at fault, they shall each bear corresponding responsibility. Where the law provides otherwise, follow those provisions. Private lending shall follow the principle of self-owned funds, and the act of taking loans from financial institutions and then re-lending them is not protected by law, and lenders are prone to suffer losses as a result, such as credit damage and inability to recover loans. If the lender makes a profit in this way, the amount is huge and the circumstances are serious, and it may also be held criminally liable.    

Therefore, it is understandable for friends to borrow money from each other, but the "rivers and lakes to help emergencies" must also do what they can, and they must use their own funds to transfer and lend money, abide by the provisions of the law, and not touch the red line of the law because of their recklessness. In addition, for banks and other financial institutions, attention should be paid to ascertaining whether the borrower's loan purpose is true and whether the loan is actually used in accordance with the agreed purpose, and once it is found that there is a "re-lending" behavior, the loan should be withdrawn in a timely manner, and necessary measures such as including the borrower in the credit management system should be taken to prevent financial risks.

   This article is transferred from the WeChat public account "Changfa Micro Broadcast", thank you here!