The Lending Behavior in Private Lending
Ms. Zhang works as the Vice President of Company A established by Mr. Li, and they have a very good relationship privately. Last year, due to the epidemic, Company A's business was greatly affected and faced difficulties in operation. So Mr. Li approached Ms. Zhang and said that the bank loan of Company A had already become overdue. He urgently needed a sum of funds to ease the situation. He managed to make ends meet, but there was still a shortfall of 400000 yuan. He hoped that Ms. Zhang could help him. Ms. Zhang doesn't have any extra funds on hand, but for the sake of her long-time friends, she still wants to help. So, Ms. Zhang thought of a credit loan and borrowed 400000 yuan from a certain bank in her own name, which was fully transferred to Company A's account on the day the loan was received. Mr. Li was deeply moved to learn that Ms. Zhang had borrowed money from a bank to help him. He immediately stated that the monthly principal and bank interest that Ms. Zhang should repay would be remitted by Company A to Ms. Zhang on a monthly basis. In addition, an additional interest of 2000 yuan per month would be given to Ms. Zhang. Both parties also signed a loan agreement on this matter. Unexpectedly, starting from the fourth month, Company A will no longer send remittances to Ms. Zhang. Mr. Li said that the company's operations have not improved and there is indeed no money left. This also led to Ms. Zhang's bank loan being overdue. Helplessly, Ms. Zhang sued the court and demanded that Company A fulfill its repayment obligations in accordance with the loan contract.
Lawyer Analysis
1、 The loan contract between Ms. Zhang and a certain bank.
The loan contract of a bank generally has a clear agreement on the purpose of the loan, and the borrower should also use the loan according to the agreed purpose of the loan contract. According to Article 673 of the Civil Code: "If the borrower fails to use the loan for the agreed purpose, the lender may stop issuing the loan, withdraw the loan in advance, or terminate the contract." If the bank discovers that the borrower has not used the loan for the agreed purpose, it may take measures to stop issuing the loan, withdraw the loan in advance, or even terminate the contract. At the same time, the borrower should repay in full and on time according to the repayment method, repayment time, and repayment amount stipulated in the loan contract. Otherwise, they may face legal risks such as being liable for breach of contract (such as paying overdue interest), being called upon by the bank, or the loan limit being reduced or frozen. At the same time, they may leave negative records on their own credit records, which may affect their future loan applications.
2、 The loan contract between Ms. Zhang and Company A.
According to Article 13 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Loan Cases (Second Amendment in 2020)", if a financial institution borrows a loan for loan transfer, the people's court shall determine that the private loan contract is invalid. Therefore, if a lender borrows loans from a financial institution for further lending, regardless of whether the lender has benefited from the act, the validity of the loan contract is negated due to the nature of the act of further lending, which evades financial regulation and disrupts financial order.
Article 157 of the Civil Code stipulates: After a civil legal act is invalid, revoked, or determined to have no effect, the property acquired by the actor as a result of the act shall be returned; if it cannot be returned or is not necessary to return, it shall be compensated at a discounted price. The party at fault shall compensate the other party for the losses suffered as a result; if all parties are at fault, each party shall bear corresponding responsibilities. If there are other provisions in the law, they shall be subject to their provisions Due to the invalidity of the loan contract between Ms. Zhang and Company A, both parties can handle it according to the aforementioned provisions based on the actual situation.
3、 This case is also suspected of the crime of transferring loans at high interest rates.
Article 175 of the Criminal Law of the People's Republic of China (Revised in 2020) stipulates the crime of transferring loans at high interest rates, which refers to the act of obtaining credit funds from financial institutions and transferring them to others at high interest rates for the purpose of making profits through transferring loans, resulting in a relatively large amount of illegal gains. At the same time, Article 21 of the Notice on Printing and Distributing the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II) stipulates that those who, for the purpose of making profits by transferring loans, illegally obtain credit funds from financial institutions and transfer them to others at high interest rates, shall be filed and prosecuted.
Employees can lend their own money to the company, but they cannot lend the money from the loan to the company. Otherwise, they will face personal credit risks, invalid loan contracts with the company, and even legal risks of suspected high interest lending crimes.
