[introduction of the lawyer in this case] Ma Linping, the founding partner of Liaoning Tongfang law firm, is currently the director of Dalian Branch of Liaoning Tongfang law firm. At the same time, he served as an arbitrator of Dalian Arbitration Commission, a member of the 13th CPPCC of Dalian Municipal People's Political Consultative Conference, an expert adviser on local legislation of the Standing Committee of the 16th National People's Congress of Dalian, a deputy director of the education and Training Committee of Liaoning Lawyers Association, a chairman of the business research and Training Committee of Dalian Lawyers Association, a director of the Seventh Council of Dalian Lawyers Association, and a visiting professor of the Law School of Liaoning Normal University. He has won many honors such as the top ten civilized lawyers in Liaoning Province, excellent lawyers in Liaoning Province, and excellent lawyers in Dalian city. Lawyer Ma Linping has strong professional ability and rich practical experience in criminal defense, and has done in-depth research and practice in many legal fields.
[judgment points] the focus of the dispute in this case is: 1. Whether the request of a company in Shenyang for payment of interest and liquidated damages should be supported; 2、 A company in Shenyang claimed whether the interest and liquidated damages should be limited by the maximum interest rate of private loans. First of all, it is not the exclusive right of financial institutions to collect loan interest. After a company in Shenyang receives the creditor's rights involved in the case, it naturally has the right to request the debtor including a company in Jiangsu to pay interest according to the contract involved in the case. The appeal reason of a company in Jiangsu that it should pay interest to a company in Shenyang according to the interest rate standard of similar loans in the same period issued by the people's Bank of China has no contract and legal basis and should not be supported. Second, a trust company in Dalian is a financial institution engaged in loan business approved by the financial supervision department. The disputes arising from the granting of loans belong to financial loan disputes rather than private loan disputes. The creditor's rights of a company in Shenyang are obtained from a trust company in Dalian. The company claims that the creditor's rights should not be applicable to the relevant provisions on private loans. A company in Jiangsu, based on the fact that the original financial loans have been converted into private loans, further believes that the interest and liquidated damages agreed on the loans involved in the case should not exceed four times the interest rate of similar loans in the same period issued by the people's Bank of China, which has no legal basis and is not supported.
[basic case] a trust company in Dalian (hereinafter referred to as "the trust company") and a company in Jiangsu signed a financing agreement and supplementary agreement on November 4, 2013, which agreed that the trust company would grant a loan of 250 million yuan to a company in Jiangsu. The term was from the date of the lender's account to November 3, 2015, and the loan interest rate was 14% / 360 per day. If the borrower fails to repay the principal and interest in full as agreed, the trust company has the right to terminate the agreement, announce the maturity of all loans, and collect liquidated damages at the daily interest rate of 14% / 360 from the overdue date. After the contract was signed, the trust company lent money according to the contract, but a company in Jiangsu failed to pay the interest on schedule.
On September 28, 2014, a company in Shenyang signed the credit transfer agreement with the trust company, which agreed that the trust company would transfer its credit to a company in Jiangsu and the rights and obligations under the relevant agreements to a company in Shenyang. After the contract was signed, a company in Shenyang paid all the transfer price to the trust company, and the trust company fulfilled the obligation of notifying the transfer of creditor's rights.
A company in Shenyang filed a lawsuit to the court, requesting a judgment that a company in Jiangsu should repay its debts, pay interest from September 28, 2014 to the time of payment at the daily interest rate of 14% / 360, and pay liquidated damages from September 28, 2014 to the time of payment at the daily interest rate of 14% / 360. The court of first instance supported the claim of a company in Shenyang on the grounds that the financing agreement was legal and effective, the creditor's rights of a company in Shenyang to a company in Jiangsu were legally transferred to the trust company, and the company legally enjoyed various rights and interests under the relevant agreements.
A company in Jiangsu filed an appeal to the Supreme People's court, and a company in Shenyang entrusted our lawyer to defend on its behalf. The Supreme Court held that the facts determined by the court of first instance were clear, the applicable law was correct, and the judgment result was appropriate. The court rejected the appeal and upheld the original judgment.
[judgment result] the first instance judgment of Liaoning Provincial Higher People's court supports the plaintiff's claim, and the financing agreement is legal and effective. The second circuit court of the Supreme People's court rejected the appeal and upheld the original judgment.
[reasons for adjudication] the court of second instance held that the focus of the dispute in this case was: 1. Whether the request of a company in Shenyang for payment of interest and liquidated damages should be supported; 2、 A company in Shenyang claimed whether the interest and liquidated damages should be limited by the maximum interest rate of private loans.
1、 Whether the request of a company in Shenyang to pay interest and liquidated damages should be supported.
Article 8 of the contract law of the people's Republic of China stipulates that "a legally established contract shall be legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. A legally established contract shall be protected by law." The financing agreement, supplementary agreement, mortgage contract, pledge contract and guarantee contract signed by a trust company in Dalian and a company in Jiangsu Province, as well as the pledge contract and guarantee contract signed by other third parties, are the true intention of all parties, and do not violate the mandatory provisions of laws and administrative regulations. They are legal and effective, and all parties shall perform according to the agreement. A trust company in Dalian transferred the creditor's rights involved in the case to a company in Shenyang and performed the obligation of notification to the debtor. The transfer of creditor's rights was established. From the time of transfer of creditor's rights, the rights of a trust company in Dalian in the contract involved in the case shall be enjoyed by the transferee, a company in Shenyang. Paragraph 2 of Article 2 of the supplementary agreement stipulates that the loan interest rate during the loan period is 14% / 360 per day. This Agreement does not violate the law. After a trust company in Dalian pays the loan, a company in Jiangsu, as the borrower, shall pay the interest as agreed. At the same time, it is not the exclusive right of a financial institution to collect the loan interest. After a company in Shenyang receives the creditor's rights involved in the case, it naturally has the right to request the debtor including a company in Jiangsu to pay interest according to the contract involved in the case. The appeal reason of a company in Jiangsu that it should pay interest to a company in Shenyang according to the interest rate standard of similar loans in the same period issued by the people's Bank of China has no contract and legal basis and should not be supported.
Regarding the collection of liquidated damages, from the perspective of the relationship between the financing agreement and the supplementary agreement, articles 1 and 2 of the supplementary agreement actually clarify the legal relationship between the two parties in the financing agreement, that is, the financing relationship between a trust company in Dalian and a company in Jiangsu is clearly defined as a loan contract relationship. At the same time, the name of the consideration for the borrower to obtain the loan principal and the name of the fees paid in case of default in the financing agreement have been changed, that is, the financing income agreed in the financing agreement has been changed to the loan interest, and the liquidated damages have been changed to the default interest. However, the agreed calculation standard and calculation method have not been changed, indicating that the substantive contents of the liquidated damages and default interest are the same except for the name change. Since a company in Shenyang obtained the contractual rights of a trust company in Dalian, and the current laws and regulations do not prohibit non-financial institutions from collecting penalty interest, a company in Shenyang requests a company in Jiangsu to pay liquidated damages according to the contract, in essence, it requests to pay the penalty interest agreed by both parties in the supplementary agreement, which should be supported. The appeal reason of a company in Jiangsu that a company in Shenyang could not collect penalty interest could not be established. However, it should be pointed out that when the parties have changed the name of the liquidated damages to the default interest, the court of first instance still expresses it as the liquidated damages according to the name before the change, which is not very strict. Since the calculation standard of liquidated damages determined in the first instance judgment is the same as the calculation standard of penalty interest agreed in the supplementary agreement and does not damage the substantive interests of a company in Jiangsu, this court will not correct this. 2、 On whether the interest and liquidated damages claimed by a company in Shenyang should be limited by the maximum interest rate of private lending.
The first paragraph of Article 2 of the measures for the administration of trust companies stipulates that "the trust companies referred to in these Measures refer to the financial institutions mainly engaged in trust business established in accordance with the company law of the people's Republic of China and these measures." The first paragraph of Article 20 stipulates that "a trust company may carry out inter-bank deposits, inter-bank lending, loans, leasing, investment and other businesses under its inherent business. The investment business is limited to equity investment, financial product investment and self use fixed asset investment of financial companies." The business scope column of the business license of a trust company in Dalian clearly states that its business scope includes loan business. Item 11 of Article 2 of the reply of the China Banking Regulatory Commission on the change of the name and business scope of Dalian Huaxin Trust Investment Co., Ltd. (YJ [2007] No. 409) states that the business scope of a trust company in Dalian includes the use of inherent property in the form of inter-bank deposit, inter-bank lending, loan, lease and investment, Therefore, a trust company in Dalian is a financial institution and has the business qualification to issue loans according to law. Private lending refers to the financing between and among natural persons, legal persons and other organizations. The relevant provisions of private lending are not applicable to the disputes arising from the granting of loans and other related financial businesses of financial institutions and their branches established with the approval of the financial regulatory department. A trust company in Dalian is a financial institution engaged in loan business approved by the financial supervision department. The disputes arising from the granting of loans belong to financial loan disputes rather than private loan disputes. The creditor's rights of a company in Shenyang are obtained from a trust company in Dalian. The company claims that the creditor's rights should not be applicable to the relevant provisions on private loans. A company in Jiangsu, based on the fact that the original financial loans have been converted into private loans, further believes that the interest and liquidated damages agreed on the loans involved in the case should not exceed four times the interest rate of similar loans in the same period issued by the people's Bank of China, which has no legal basis and is not supported.
[relevant laws] Article 8 of the contract law of the people's Republic of China stipulates: "a legally established contract shall be legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. A legally established contract shall be protected by law."
Article 207 of the contract law of the people's Republic of China stipulates: "if the borrower fails to repay the loan within the agreed time limit, it shall pay the overdue interest in accordance with the agreement or relevant national regulations."
The first paragraph of Article 2 of the measures for the administration of trust companies stipulates that "the trust companies referred to in these Measures refer to the financial institutions mainly engaged in trust business established in accordance with the company law of the people's Republic of China and these measures." The first paragraph of Article 20 stipulates that "a trust company may carry out inter-bank deposits, inter-bank lending, loans, leasing, investment and other businesses under its inherent business. The investment business is limited to equity investment, financial product investment and self use fixed asset investment of financial companies."
[lawyer's opinion] first, whether the judicial interpretation of private lending is applicable to the transfer of creditor's rights of financial institutions by ordinary civil subjects
In this case, a company in Jiangsu claimed that a company in Shenyang was an ordinary civil subject of a non-financial institution. After receiving the creditor's rights, the legal relationship between a company in Jiangsu and a company in Shenyang should be changed from financial loans to private loans, and the relevant provisions on private loans should apply. In addition, during the trial of the second instance of this case, the provisions of the Supreme People's Court on Several Issues concerning the application of laws to the trial of private lending cases (hereinafter referred to as the "judicial interpretation of private lending") was deliberated and adopted, and its implementation was imminent. Its limit on the maximum interest rate of private lending greatly affected the trend of this case.
Regarding the application of the judicial interpretation of private lending, first of all, the creditor's rights transfer agreement of this case was signed on September 28, 2014, which is earlier than the implementation time of the judicial interpretation of private lending, that is, September 1, 2015; Secondly, the case was filed earlier than the implementation time of the judicial interpretation of private lending. Based on the above two points, according to the principle of non retroactivity, the judicial interpretation should not be applied.
With regard to the basic legal relationship of this case, as the Supreme Court held in the judgment of the second instance, the trust company is a financial institution engaged in loan business approved by the financial regulatory department. The disputes arising from the granting of loans belong to financial loan disputes rather than private lending disputes. A company in Shenyang obtained creditor's rights from the trust company, and its claims naturally do not apply to the relevant provisions on private lending.
Second, whether the ordinary civil subject can claim interest and liquidated damages as agreed in the financing agreement when accepting the creditor's rights of financial institutions
A company in Jiangsu believes that a company in Shenyang can only claim interest according to the same loan interest rate standard of the people's Bank of China for the same period, and has no right to require the debtor to pay interest and penalty interest according to the financing agreement.
First of all, as mentioned above, a company in Shenyang legally continues all the creditor's rights of the trust company to a company in Jiangsu, and naturally can claim interest at the interest rate agreed in the financing agreement. This part of the interest rate is not applicable to the relevant provisions of private lending. Moreover, the daily interest rate of 14% / 360 is not more than four times the interest rate of similar loans of the people's Bank of China in the same period. Secondly, according to Article 81 of the contract law of the people's Republic of China (hereinafter referred to as the "contract law"), a company in Jiangsu believes that the collection of penalty interest is the exclusive right of financial institutions and should not be transferred to a company in Shenyang along with the creditor's rights. As an ordinary civil subject, a company in Shenyang does not have the right to collect penalty interest. The essence of "penalty interest" in this case is actually liquidated damages. According to Article 207 of the contract law, if the borrower fails to repay the loan within the agreed time limit, it shall pay the overdue interest as agreed. In addition, according to Article 25 of the regulations on the administration of RMB interest rate, the calculation and collection of compound interest is the exclusive right of financial institutions. A company in Jiangsu confused the two concepts of default interest and compound interest, and claimed that a company in Shenyang had no right to continue the right of default interest in the financing agreement, which was not supported by the Supreme People's court.
The key to the successful agency of this case lies in the accurate grasp of the law. The trial stage of this case coincides with the time when the new judicial interpretation comes into effect. How to correctly understand the spirit of the new judicial interpretation and protect the legitimate rights and interests of the client is the focus that lawyers should pay close attention to. It is particularly important to understand the legal spirit conveyed by the new judicial interpretation. It is on the basis of the lawyer's deep legal foundation and the spirit of being highly responsible to clients that this case was finally supported by the Supreme People's court and became a reference model for other cases in the field of creditor's rights protection.