[My lawsuit.]192no.193] 5 million private loan case.
The client borrowed two sums of money totaling $5 million to a businesswoman, and the company run by the businesswoman acted as a guarantor, and two shareholders of the company, namely the businesswoman's daughter and aunt, provided the guarantee. After repaying some interest, the businesswoman said that she had business difficulties and did not repay the loan, and the party asked the employee to go to the company to pull away a cart of fabric, but the other party still did not repay the money, and the party entrusted me to sue.
The debtor had already divorced, but I estimated that they were divorced to escape the debt, so I asked the court to issue a letter of supplementary materials, and then asked the assistant to take the letter to the Civil Affairs Bureau, and found out that the time of their divorce was indeed after the loan, so I listed the debtor's husband and wife and the three guarantors as defendants. One case per IOU, two cases were filed.
In the first trial, several defendants entrusted a total of six lawyers**, and the lineup was strong. The debtor has no objection to the amount of the creditor's right, but believes that the value of the cloth taken away by us is more than 2 million yuan, which can offset part of the loan principal. The two natural person guarantors claimed that their signatures on the guarantee agreement were fake, and that the debtor took their identity cards and brought two ladies to counterfeit their signatures, so they did not have to bear the guarantee liability. The husband of the creditor claimed that the debt occurred during the period of separation, and that the loan involved in the case was not agreed upon by them, and the amount borrowed far exceeded the normal household expenses, so it was not a joint debt of the husband and wife.
The debtor's defences are not worth refuting, as they belong to different legal relationships and should be asserted separately. There was also no legal basis for the debtor's husband's opinion, because at that time Article 24 of Interpretation (II) of the Marriage Law was still in force, and debts incurred during the marriage were presumed to be joint debts of the husband and wife. Interestingly, the opinion of the two natural persons, they advocated that the signatures were fake, and when the court asked them if they wanted to apply for a handwriting appraisal, they insisted that the burden of proof was on the plaintiff's side, and the plaintiff should apply for an appraisal, and I knew that they misunderstood the allocation of the burden of proof and did not argue too much with them.
The court gave them a few days to consider whether to apply for an appraisal, which they did not. After some time, they suddenly submitted an application to the court, asking the court to appoint an appraisal agency to authenticate their handwriting. The judge was more cautious and asked us to go over to take a record, and when I was asked for my opinion, I firmly disagreed with the appraisal because they did not submit the application for appraisal within a reasonable period of time. The judge accepted my opinion and did not agree with the evaluation.
Shortly thereafter, the first-instance verdict was issued, which basically held all the defendants liable as requested. The two natural person guarantors applied for handwriting appraisal, and the debtor applied for appraisals of the value of the fabrics, and the court of second instance remanded for a new trial on the grounds that the facts were unclear.
In the first instance, the two natural person guarantors again applied for an appraisal of the records, which was allowed by the court, and the appraisal concluded that the signatures on the guarantee contract were not signed by them. We asked the court to transfer the case to the public security bureau on the grounds that the debt was suspected of fraud, but the court ignored it and told us to report the case ourselves. The parties themselves went to the public security bureau to report the case, but the public security bureau also refused to file the case, saying that the debtor still repaid part of the interest and had no intention of fraud.
The first instance ruled that the debtor's husband and wife and the company's guarantor were jointly and severally liable for the debts involved in the case, and the debtor's ex-husband was dissatisfied and appealed. A few days before the second instance, the Supreme People's Court's Interpretation on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife came into effect, which basically placed the burden of proof on the creditor of the joint debts of husband and wife. For debts borrowed in the name of one of the husband and wife in excess of the daily needs of the family, the creditor needs to prove that the debt is used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife, otherwise it cannot be recognized as a joint debt of the husband and wife.
On the day of the second trial, I happened to have something to do, and I was afraid that the parties would not be at ease, so I called a more senior colleague to appear in court, and after the trial, I submitted another ** word, the main point of view is that the provisions of the interpretation should not be applied to the cases that have not been concluded before the implementation of the interpretation, and the court did not adopt my point of view, and ruled that the appellant's appeal request was partially established, and the judgment was changed that the debtor and the company operated by the debtor were jointly and severally liable for the debts involved in the case, and the debtor's ex-husband was no longer liable.
This is a private lending case that is not complicated, but due to various bizarre and coincidental factors, the judgment has been repeatedly changed, which shows that the only certainty of litigation is its uncertainty. There are many parties who always hope that the lawyer can promise the outcome of the case, and there are indeed some unreliable lawyers who often pat their chests and pack tickets for their clients, which seems somewhat naïve and ridiculous from the perspective of this case.
Zhou Xiaoming, Ph.D. in Economic Law, Postdoctoral Fellow in Law, Partner at Dentons. His main areas of practice are corporate and equity, dispute resolution, computer and data, and criminal defense.