(1) Civil loan with all cash transfer.
The folk loan method is the traditional way of civil loan in the traditional sense. The lenders transfer the cash to the debit, and the lenders will give the lenders to lend it. For this kind of loan method, a one -way loan relationship is formed between borrowing, that is, the lending party has cash to the debit, and the debit provides a lending party. Once the legal acts of the two parties are completed and the two parties recognize, the one -way borrowing is formed by the borrowing of the loan. The legal rights and obligation relationship, that is, the rights of the lending party to enjoy the amount of debiting from time to be recovered, and live up to the obligations. This loan method, my country's contract law regulates it as a loan contract between natural persons. The nature of this contract is a single -service contract and a practical contract. The legal relationship of this kind of civil loan is relatively simple and clear, and it is easier to deal with.
(2) Civil loan without transfer of cash.
This method of private loan is agreed by the debit and the lending party to pay a certain or borrowing of the lender or borrowed from the other party to a certain or more matters. Fund or borrowing from others. This loan method actually exists, and disputes are prone to occur. With disputes, after filed a lawsuit, the judgment is more complicated.
The borrowing method is fundamentally different from the traditional borrowing method. There are mainly fundamental differences in the following aspects:
1. Cash transfer does not occur.
M n means that the lending party does not hand over cash to the debit, and the debit still has to give the debit to the debit to the lender. inside.
2. A two -way borrowing relationship is formed.
In borrowing methods for all cash transfer, all cash is transferred from the lending party to the debit, forming a one -way borrowing relationship, that is, the relationship between the lending party borrowed money. In the loan method that does not transfer all cash, since the cash is not transferred to the lending side, it forms a two -way equal borrowing relationship, that is, the relationship between the loan side borrowing money, on the other hand, the direction of the loan direction is The debit borrowing money means that the debit is lending to the lender, which is actually equal to providing the cash amount of the equal amount of the lending party. If from the perspective of borrowing funds, the cash is transferred only once in the traditional sense of private lending, that is, just transferred from the lender to the debit, and the lending party formed a loan relationship. For modern civil loans that do not transfer cash, the lending party has given the lending cash. After the debit to the lending party, the cash is given to the lending party. There was no transfer exercise, but two virtual movements were performed one by one, that is, the lender was transferred to the debit, and the debit transfer or returned to the lending party. The true form of exercise is that only the debit to the lender is debit. Without receiving the money of the lender, the money is still in the hands of the lender. This is the same as the result of the two transfer movements of the cash. For example, A and B shall be agreed by the money or borrow 100,000 yuan from the other party as the matter B, and B will be recognized by B to A from A to A. At that time, whether the money was made by himself or borrowed from him. The real loan relationship formed and existing between A and B is that B owes 100,000 yuan, but it does not receive a penny of A. However, it has the 100,000 yuan creditor's rights that B, and A's hand still has 100,000 yuan in cash. This has formed a bidirectional borrowing relationship, that is, A as the loan, B as a debit, B owes 100,000 yuan in A. At the same time, A also owes B 100,000 yuan. The two parties are the borrowers of each other. Only by admitting that this two -way borrowing relationship is in line with objective reality, can we clearly explain the actual loan relationship. If this two -way borrowing relationship is not acknowledged, then it is difficult to find the balance point of the borrowing parties in the borrowing relationship that does not transfer cash by lending in cash.
3, the borrowing parties are mutual creditors and debtors.
Because it is a two -way borrowing relationship, both parties to the lending are the creditors and the debtor. In the traditional folk loan, one -way borrowing relationship is only the debtor, the creditors are the creditors at the same time, the loan is only a creditor, and the debtor is different at different times.
In this two -way borrowing relationship, both borrowing parties enjoys each other's rights, and the debt obligations are available in each other. It is the claims of the other party, and the claim of one party is the debt of the other party. In traditional private loan relationships, it is just one -way debt -debt relationship.
5, this modern civil lending contract is a dual service contract and a promise contract.
The regulation of private lending contracts in my country is a single -service contract and practical contract. This is not consistent with the modern civil loan contract that does not transfer cash. In fact, a modern civil loan contract that does not transfer cash, that is, a civil loan contract that uses debit as a certificate and does not transfer cash, has broken through the scope of the traditional civil loan contract in the traditional sense. Characteristics.
The say that they are dual borrowing contracts, because they are a two -way borrowing relationship. Both parties to the borrowing parties enjoy each other's debt and mutual debt, and each other is creditors and debtors. If it denys its duality, then it cannot truly reflect the actual two -way equivalent debt and debt relationship.
The say that it is a promise contract, because of this loan relationship. As long as the two parties agree, the loan direction has a debit, and the loan relationship has been formed and existed. And also enjoy their own rights. Because this loan relationship is the true meaning of both parties, and does not violate legal regulations and social morality, and the relationship between the two parties does form actual debt and debt relationships. The law should give support and effectively protect. This can help give full play to the promotion of modern folk lending on the market economy and provide more convenience for the people. If this modern folk loan relationship is limited as a practical contract, it will deny its rationality and effectiveness and not give it to legal support and protection. The effective development of the activity makes it more difficult to deal with the disputes it produces
Talking about civil loans
What is private lending civil loan refers to borrowing between citizens, citizens and legal persons, between citizens and other organizations. As long as the opinions of the two parties are true, it can be determined that it is valid. The mortgage generated by the borrowing is correspondingly valid, but the interest rate shall not exceed the relevant interest rates stipulated by the People's Bank of China. Civil lending is a direct financing channel, and bank lending is an indirect financing channel. Folk loans are a kind of investment channel for private capital and a form of private finance. According to Article 211 of the Contract Law: "If the loan contract between natural persons stipulates the interest, the interest rate of the loan shall not violate the regulations on the interest rate of the loan in violation of the state." At the same time, in accordance with the relevant provisions of the Supreme People's Court's "Several Opinions on the People's Court's Trial Cases": "The interest rate for private lending can be appropriately higher than the interest rate of banks, but the maximum must not exceed four times the interest rate of similar loans of banks."
The narrow civil loan refers to a civil legal behavior that citizen performed currency or other securities borrowing in accordance with the agreement. In addition to the above -mentioned content, civil loan also includes the lending of currencies or securities between citizens and legal persons and citizens and other organizations. In real life, it usually refers to the private loan in the narrow sense. [Edit this paragraph] The legal characteristics of civil lending Priven lending is not only an economic phenomenon, but also a legal phenomenon. It has the following main legal characteristics: r
(1) Civil lending is a civil legal act. Both the borrowing parties signed a written loan agreement or reached a verbal agreement to form a specific debt and debt relationship, thereby generating corresponding rights and obligations. Debt and debt relations are an important part of my country's civil legal relationship. Once this relationship is formed, it will be protected by law.
(2) Civil lending is a contract with borrowers and borrowers. Whether the borrowing parties form a lending relationship, the amount of borrowing, the borrowing bid, and the loan term depends on the written or verbal agreement between the borrowing parties. As long as the content of the agreement is legal, they are allowed and protected by law.
(3) The premise of the establishment of private lending relations is the actual payment of loans. Whether the borrowing relationship between the borrowing and loan parties will be consistent with the contents of the borrowing target, amount, and repayment period, and also requires the lender to deliver the currency or other securities to the borrower, so that the loan relationship is officially established.
(4) The target of private lending must be the property owned by the borrower or the right to dominate. It does not belong to the borrowing relationship formed by the property that is not dominated by the lender or the borrower does not dominate, and is not protected by law.
(5) Civil borrowing can be paid or unpaid. Whether it is paid by the borrowing parties. Only those who agreed in the written or verbal agreement in advance or verbal agreement can the borrower ask the borrower to pay interest at the time.
If folk lending is legal?
Generally speaking, civil loan is legal, but it must be within the scope of law, otherwise it will not be protected.
The private lending is divided into private personal lending activities and borrowing between citizens and financial enterprises. Public lending activities must strictly abide by the relevant provisions of national laws and administrative regulations, and follow the principles of voluntary mutual assistance and honesty. The borrower's funds must be their own funds that belong to their legal income, and it is forbidden to absorb other people's funds to transfer loans. The private lending interest rate of the private parties shall be determined by both parties to the borrowing, but the interest rate of the negotiation between the two parties shall not exceed the national regulations. Borrowing between citizens and enterprises, as long as the intentions of the two parties are true, they can be determined.
For one of the following circumstances, the loan contract shall be determined that the loan contract shall be invalid: (1) Enterprises illegally raise funds to employees in the name of borrowing. (2) Enterprises illegally raise funds to the society in the name of borrowing. (3) Enterprises issue loans to the public in the name of borrowing. (4) Other borrowing behaviors that violate laws and administrative regulations. [Edit this paragraph] The on -government loan should be precautions It in real life, there are a lot of disputes caused by civil lending. Some civil loans have not signed any contracts; although some of them have signed contracts, the regulations are not detailed enough, and even people are used because the contract is invalid ...
So then, what should civil loan pay attention to? Here, according to the experience of many years of part -time lawyers, I will introduce you to some legal knowledge of civil loan:
. It is best to sign a written contract
"The form represents the contract, which is generally possible. However, because the debit is too simple, it is difficult to deal with disputes. Therefore, the borrowing parties are best to sign a formal lending contract to determine the rights and obligations of the parties in detail, so as not to leave the trouble. Of course, if there is indeed no written lending or contract between the parties, but both parties acknowledge that the borrowing is acknowledged, it can be confirmed that the borrowing relationship between the two parties is existing.
. The agreement on interest should be legal
In private lending, the most contradictory of the borrowing parties is interest. The law clearly stipulates:
(1) If the borrowing parties controversy whether there is an appointment interest rate or not, it cannot be proved.
(2) If the parties agreed that the interest rate standards are controversial, their interest rate standards may be determined within the standard of up to 4 times the interest rate of similar loans of the bank.
(3) In interest borrowing, the interest rate can be appropriately higher than the bank interest rate, but it must not exceed 4 times the interest rate of similar loans of banks, that is, it is not allowed to engage in usury.
(4) The borrower shall not calculate the interest in the principal, otherwise it will not be protected by law.
(5) If the parties have a dispute over borrowing foreign currency and Taiwan dollar, if the lender requires that the same kind of currency is repaid, it may be allowed. If the borrower does have no similar currency, the foreign exchange brand price at the time of repayment is equivalent to RMB repay. If the debit requests to pay interest, you can refer to the interest rate of foreign currency savings in the Bank of China.
. Pay special attention to the timeliness of litigation
The private lending is between relatives and friends, and many people do not pay attention to it. Unexpectedly, some rogue people just drilled this empty and adopted the way of relying on accounts, long drags, and avoidance to avoid debt. I would like to remind everyone: 2 years from the expiration of the repayment period, which is the time limit for litigation stipulated in the law. During this period, you must claim debt to the borrower. Two years later, the court will not protect your claims; if the repayment date is not stated, the longest period of time for litigation is 20 years
. Four. 4. Flexible disputes
The method of dealing with private lending disputes include negotiation, mediation, arbitration, and litigation. The fourth method is needed here: "litigation", which specifically refers to a simple procedure, that is, urging procedures. The civil procedure law amended in 1991 added the procedure. In accordance with the law, the creditors can apply to the court for a payment order for the facts that the facts are relatively clear and the amount of small amounts and small amounts, and directly require the debtor to repay the debt. In the prescribed time, if the debtor has no objection, the payment order will have legal effect. If the debtor does not fulfill its repayment obligations, the court may implement forced enforcement.
. The development status of F development of private lending
"Civil Loan" first appeared in the developed regions of the south. As folk capital became larger and larger, it was difficult to loans of owners of small and medium -sized enterprises. The problem is increasingly prominent. Individual open cities have tried to make this part of "private capital" dock with SMEs. Practice has proved that it is correct. At present, among many economic open cities across the country, private lending has walked from "underground" to "ground". The people have also changed the old understanding. Civil lending has become increasingly important to solve the difficulty of loans and active local economies for the government. The role. For example: Qingdao City, private lending has developed vigorously since 2007, and many regulatory companies have been born. At present, the Qingdao Municipal Government is led to organize the private loan agencies to establish a comprehensive service center to improve efficiency and form formed scale. (Reference:)
. Do not lend money to unfamiliar people easily. Judging from the case accepted by the court, the repayment rate of repayment that the borrowing parties are not familiar with are far lower than the private loans between acquaintances. Many strangers left after borrowing money, and the repayment date arrived, but people could not find it.
Is that the borrower should have a receipt when repayment, or it will be destroyed in person in person after repayment, so as not to cause unnecessary trouble in the future. In addition, it is best to have a proof of borrowing money to repay.
The five -color soil mode of folk loan
is first created by five -color soil in 2003. On the one hand On the one hand, through a convenient way, we can solve the financing problem of urgent need for funds. This model is the first to be created by the five -color soil in 2003. It is not only a standardized, sunny, and legalized civil loan model, but also a rigorous investment and financing product. Therefore, the industry is called "five -color soil model mortgage loan" Essence In August 2005, the "China Business Daily" was reported in depth on the title of "Bad Loan: Five -color Earth -Grassroots Financial Qingdao Sample", which has caused strong response from all walks of life.
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