Core tip: Although the borrower is not a professional money lender, the borrower can still be ruled that the borrower is not liable for interest.
Case **: Xinjiang Uygur Autonomous Region High People's Court Production and Construction Corps Branch (2023) Bing Min Shen No. 458 (Ruling on July 24, 2023).
Facts:
On November 29, the defendant borrowed 250,000 yuan from the plaintiff, and the defendant issued a receipt to the plaintiff, which read: "I received the house payment of 20,000 yuan today. The defendant noted below the receipt that "this house payment was transferred to Zhang's Agricultural Bank card".
2. On the same day, in order to provide security for the loan, the defendant signed a "Housing Transfer Contract" with the plaintiff, stipulating that the defendant would give the plaintiff 400,000 yuan for the house. On the same day, the plaintiff paid 250,000 yuan by bank transfer to Zhang.
In April and December of that year, the plaintiff repeatedly demanded repayment from the defendant through WeChat.
4. In order to confirm that it had agreed with the defendant on the interest on the loan, the plaintiff submitted a "detailed list of debit card account history", and the transaction party was the plaintiff and "Shi X Division", and the defendant paid 7,500 yuan and 7,500 yuan in interest through the transactions on November 30, 2017 and January 30, 2018. The evidence showed that the defendant did not believe that the evidence could prove that the defendant paid interest to the plaintiff.
5. The plaintiff filed a lawsuit with the court of first instance, requesting that the defendant be ordered to return the plaintiff's loan of 250,000 yuan and the interest calculated at a monthly interest rate of 2%.
6. It was also ascertained that there were a number of private lending dispute cases between the plaintiff and the defendants Zhong, Wang and others, and the relevant civil judgments all held that:The plaintiff did not meet the Xinjiang High Court's criteria for determining a professional money lender and could not be identified as a professional money lender.
Reasons for adjudication:
The court of first instance ruled that the defendant should return the plaintiff's loan of 250,000 yuan and rejected the claim for interest.
The court of second instance reversed the judgment of the defendant to return the plaintiff's loan of 235,000 yuan and rejected the interest claim.
The XPCC Branch of the Xinjiang Higher People's Court held that in this case, although the defendant did not file an appeal, the two parties had a number of lawsuits based on the private lending relationship, and the plaintiff recognized that the defendant would pay 1. to it in two installments50,000 yuan, and the amount has not been deducted in other related cases, the court of second instance found that the defendant had paid 1There is nothing wrong with $50,000 being the principal amount of the loan. After investigation, the plaintiff participated in 23 private lending cases between January 1, 2018 and March 3, 2021.
The first and second instance did not find that he was a professional money lender, and the plaintiff's repeated acts of lending money to others affected the national financial order and harmed the public interest, and the court of second instance did not improperly determine his claim for interest payment.
The author's analysis:
Where a lender repeatedly and frequently lends large sums of money and makes a profit, it may be found to be a professional money lender. However, although the lender in this case did not meet this standard, it also disrupted the social order in a certain procedure, and its claim for high interest should not be supported.
In this case, the parties did not sign a loan agreement, but performed the loan in the form of a house sale, and there was no written agreement on the interest standard, which should be regarded as no interest. However, in fact, the borrower paid part of the interest through other means, and there was a hidden interest agreement between the two parties, but this agreement did not comply with the law and could not be supported.