【case】
The plaintiff Zhang San and the defendant Li Si were comrades-in-arms relationship, and the defendants Li Si and Wang Wu were married. On September 3, 2007, the defendant Li Si requested the plaintiff to provide loans for the reason that the outsider Zhu Six operated the real estate urgently needed funds. On the same day, in the case of the unanimous consent of Zhang San, Li Si and Wang Wu, both the original and the defendant directly handed over the borrowed funds to the outsider Zhu Liu (the defendant Li Si himself also loaned Zhu Liu part of the funds), and Zhu Liu issued a loan to the defendant Li Si on the aforementioned loan (but Zhu Liu did not issue a loan to Zhang San). After the loan, the outsider Zhu Liu paid part of the interest to the two defendants. After receiving the interest of Zhu Liu, the two defendants paid the plaintiff Zhang San the interest on the loan for the previous two months. As of September 2, 2008, the outsider Zhu Liu failed to pay off the loan in time, and after settlement, he re-issued a loan from the defendant Wang Wu. Then, at the request of the plaintiff Zhang San, the defendant Li Si issued a receipt to the plaintiff in the name of the defendant Wang Wu for the aforementioned loan. The receipt stated that “they received Zhang San’s loan to Zhu Liu’s principal and interest of RMB 164,700. The monthly interest rate is 7%, and the loan period is 6 months." After the expiration, the original told the court that the defendant Li Si and Wang Wuqing were required to pay the outstanding loans.
[differences]
The focus of the dispute in this case is, does Li Si’s behavior constitute a loan or a loan?
The first view is that there is no private lending relationship between the original and the defendant, and the defendant's behavior constitutes a loan. The reason is: private lending refers to the borrowing behavior between citizens, citizens and non-financial institutions, and the form of the voucher is usually expressed as “debit” or “debit”. In this case, the defendant issued a “receipt” to the plaintiff, and did not issue a “debit” or “borrowing” to the plaintiff, and the “debit” or “borrowing” was essentially different from the “receipt”. In addition, from the "receipt" in the case, the contents of "receiving Zhang Sanzhuan to Zhuliu principal and interest" are analyzed. The loan provided by the plaintiff should be loaned to the outsider Zhu Liu by the defendant or witnessed. Zhu Liu should be the true meaning of the plaintiff. There is a de facto private lending relationship between the plaintiff and Zhu Liu. There is no borrowing behavior between the original and the defendant, and there is no private lending relationship.
The second view is that a private lending relationship is established between the original and the defendant, and the defendant's behavior constitutes a lending. The reasons are as follows: First, after the plaintiff’s money was delivered to the outsider by the second defendant, the outsider Zhu Liu did not issue a loan to the plaintiff as the borrower, but the borrower’s Zhu Liu was accused by Wang Fu’s consent. The defendant paid the plaintiff the interest of the loan for the first two months. The practice can be regarded as that the two defendants have already approved the loan from the plaintiff in their own name, and the second defendant lend the money from the plaintiff to the outsider Zhu Six; Second, the defendant issued a receipt to the plaintiff, and from the content of the receipt of the receipt of Zhang San’s loan to Zhu Liu’s principal and interest, the defendant acknowledged or received the payment from the plaintiff. Otherwise, the defendant There is no need to issue a receipt to the plaintiff.
[Evaluation]
The author agrees with the second view for the following reasons:
Loaning refers to the act of borrowing money borrowed by the borrower and lending it to others. Subcontracting is the act of accepting the borrower’s entrustment and acting on behalf of the borrower to borrow money from the lender in the name of the borrower. The key to the difference between the two lies in the role played by Li Sicai, the "middleman" in this loan. In this case, although Li Si issued a receipt instead of a debit, Zhang San could not deny that Zhang San and Li Si had formed a consensus on private lending relations. The reason was: First, from the text Understand that Li Si’s receipt of the receipt indicates that he has received the loan, which is in line with the characteristics of the private loan contract delivery. Secondly, the receipt not only indicates the amount of the loan, but also the interest and loan term. And the settlement method, etc., if Li Si is only transferring and contacting the loan, he has no right to replace the outsider Zhu Liu on these matters; thirdly, in the actual performance of the loan, Zhu Liu will borrow The interest was directly delivered to Li Si, and Li Si delivered the corresponding interest to Zhang San. It can be seen that Li Si has the meaning of borrowing from Zhang San. Fourth, the cash that the plaintiff borrowed was confirmed by the witness. The outsider Zhu Liu was given, but the original, the defendant and the outsider Zhu Liu Sanfang reached a consensus. This case was issued by the outsider Zhu Liu to the defendant, that is, the three parties approved that the defendant was loaned to the outsider Zhu Liu.
In summary, there is a private lending relationship between the original and the defendant in this case. The court ruled that Li Si, the "intermediate", assumed responsibility for repaying Zhang San, and it is of great significance to safeguard the principle of honesty and trustworthiness in civil activities, protect the legitimate rights and interests of creditors, and prevent debtors from "golden shelling."
HOME > ＂borrowing＂ or ＂borrowing＂ ——Identification of the legal relationship of private lending
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