Analysis of common problems in private loan cases in Shanghai (1)

Private loan disputes are common legal disputes. Whether it is to lend to strangers or acquaintances, there are always risks and disputes. When it comes to money exchange, the old adage that "it's natural and proper to repay debts" is not so easy to judge clearly, and the development of market economy and the prosperity of network transaction also make common civil loan disputes, which have many complex new forms in the new era. The following is a combination of the general practice in the trial to analyze some of the difficult problems in private lending cases.

1、 When the borrower is inconsistent with the actual payee, who should be responsible for the repayment?

In life, there are often cases where the borrower and the actual payee are inconsistent. Some loan contracts explicitly stipulate that the lender shall deliver the money to the actual payee designated by the borrower, while others do not stipulate in writing. Then the lender shall also prove that the actual payee delivered by itself is designated by the borrower. In order to prevent tedious burden of proof, it is better to put it in the loan contract Agree in writing who the actual payee is.

If the borrower admits that he / she borrows money, he / she will be directly accused of it. There is no doubt. The repayment responsibility is also borne by the borrower. The actual payee should participate in the lawsuit as a witness to prove the fact of loan delivery. If the borrower does not admit his own loan, it is advisable to add the actual payee as the joint defendant or a third person to participate in the lawsuit in order to facilitate the investigation of the facts and to effectively settle the case. In this case, the court will generally review the details such as the amount, time, place, frequency of delivery, personnel on site, the source of funds of the lender, the financial status of the lender and the borrower, and the actual payee. If necessary, it can review the relationship between the lender and the borrower, the actual borrower, the financial status of other members of the lender's family, and the relationship between the borrower and other members of the family , the purpose of the borrowed money, etc., and make a comprehensive judgment to determine whether the loan really exists and who is responsible for the repayment.

2、 Is gambling debt to be paid?

Gambling debt is illegal, not protected by law, many people know, so borrow money to pay gambling debt? According to the guiding opinions of Shanghai Higher People's Court on some issues concerning the trial of private lending cases, this requires the borrower to bear the burden of proof. There are two things to prove: 1. The loan is actually used to repay gambling debts; 2. The lender knows that the borrower borrows money to repay gambling debts. Therefore, for those who intentionally lend money to gamblers to repay gambling debts and loan usury maliciously, the creditor's rights are not protected by law, but the borrower is required to bear the burden of proof to prove it.

3、 Can loan interest, overdue interest and liquidated damages be four times higher than the bank's loan interest rate in the same period?