The difference between the borrower and the debt

How to make borrowings and owing money for legal issues has always been the first to guard against the second,
There is no difference between the borrower and the debt, and there is any legal risk in it. Not everyone knows it. Here, I will talk to you about legal issues in this regard.
1. The loan procedure must be complete.

First of all, what I want to say is: the relationship between the debtor and the creditor is good, and the borrower must also make a loan. Not making a loan is the biggest legal risk. Article 4 of the Supreme People's Court's Several Opinions on the Trial of Lending Cases by the People's Court stipulates that when the court examines a loan case, the plaintiff shall be required to provide a written loan. If there is no written loan, the necessary factual basis shall be provided, and the request shall be made without evidence. The court will not accept it. Therefore, when lending, the borrower should take the initiative to write a written debit, and the lender should also remind the other party to write a debit. If there is no special case, the third party should testify and make a debit afterwards. The lender should issue a receipt at the time of repayment, and the repayer should keep the receipt properly.

Here I emphasize one point: pay attention to the identity of the debtor. There are two points worth noting. First, the creditor should review the debtor’s identity document and ask the debtor to write the loan in person. If the debtor gives the credit card written in advance to the creditor, it does not rule out the possibility that the debtor’s signature in the loan is signed by another person. When the creditor makes a claim, he refuses to repay it on the grounds that he is not his own handwriting. If the loan is printed, it is best to ask the borrower to sign, stamp and press the fingerprint in the signature column of the borrower. Secondly, if the borrower is also the legal representative or responsible person of a company, the creditor must clarify whether the debtor is the borrower himself or the company or enterprise it represents. Legally, a legal representative or person in charge is a civil act that can include a payment on behalf of a company or business. If the creditor does not clarify the identity of the debtor, there may be cases where the identity of the borrower is mixed. The immediate consequence is that creditors will have to face the mutual push between the company or the company and the borrower in the future litigation, which will bring trouble to the realization of the creditor's rights.

Last but not least, when you are lending to your friends, it is best to leave a copy of his ID card in preparation for future litigation. Therefore, the debit must be filled in by the debtor himself.

Keep the loan in a safe place. Special care should be taken to prevent theft, loss or contamination of the borrowed item, and the place of storage should be safe, reliable, not easy to wet, and not in contact with chemicals. At the same time, it is best to make a few copies. In the future, when you make a dunning, you can first make a copy to the borrower to ensure the safety of the original.

2, the name problem

What kind of credentials should I ask for when lending money to a friend? There are three most common types of life: debt, receipt, and debit. Although there is only one word difference, their legal meanings are quite different. Although the name is not the only decisive factor in determining the legal relationship, it has a great influence on the judgment of the judge.

Both the debt and the debit are proof of the relationship between the debt and the debt, and the receipt not only proves the existence of the creditor-debtor relationship, but also can be used as proof of the equity relationship or contract performance. The former is the certificate issued by the company when it receives the capital contribution from the shareholders; the latter is the certificate issued by the seller when it receives the payment. In both cases, the party holding the receipt has no right to ask the other party to pay off the payment under the receipt. If the party holding the receipt requires the party that issued the receipt to pay off the payment under the receipt, it must prove that the receipt held by it represents the debt relationship and not the proof of the equity relationship or the performance of the contract. To do this, it is usually not enough to just show a receipt. The holder of the receipt will inevitably face the risk of losing the case when it cannot produce other evidence.

Although the debts and debits are proof of the relationship between creditor's rights and debts, there are also differences between them.

Two common formats: 1, today borrowed Zhang San 100 yuan, January 1, 2000, Li Si.

2. Today owes Zhang San 100 yuan, January 1, 2000. Li Si.

For 1, for simple loans, for 2, for arrears caused by something, such as no money after delivery, gambling lost money, no money after meals. In the legal sense, the first case, that is, the borrowing of the article, does not require other evidence to support it, and it will not happen in the case of muddy; but in the second case, it is easy to happen and muddy, usually The question of why, why, how to owe money, the problem may not be very big, but sometimes it will be more troublesome, it will happen and muddy, and even worse, it is also a hit. Article 90 of the General Principles of the Civil Law stipulates that legal lending relationships are protected by law. For example, after the gambling money is lost, it is also a slap in the court. It is because the law does not protect illegal things. Gambling is illegal. Therefore, the debts that are generated are illegal debts and are not protected by law. of.
The loan note indicates the reason for the formation of the creditor relationship, that is, it is formed by borrowing; the debt can not literally indicate the reason for the formation of the creditor relationship. There are many reasons for the formation of a creditor relationship. Borrowing is only one of them. Whether it is possible to initially determine the reasons for the formation of the creditor relationship, the biggest impact on the parties is the calculation of the statute of limitations. If it is stated that the loan is established and the loan relationship is established, the applicable statute of limitations is two years; if it is stated as owed, the statute of limitations for which it should be applied for several years should be determined according to the reasons for the formation of the owed. There are four types of time limits for litigation as stipulated in our laws: one year, two years, three years and four years.

Therefore, when you lend money to a friend, you should ask him to make a debit, not an owe and a receipt.

3, language problems

Do not use polyphonic or polysemous words when making a debit. Many Chinese characters in our country have a multi-word, one-word multi-solution phenomenon. Once these Chinese characters are used in the loan, it may cause disputes. For example, “also owing RMB 10,000 yuan” can be understood as “returning arrears of RMB 10,000 yuan”, or it can be understood as “still owing RMB 10,000 yuan”.

4, interest issues

Interest rates must be in compliance. Article 6 of the Opinions stipulates that the private lending rate may be higher than the bank interest rate, but the maximum shall not exceed four times the bank's similar lending rate. Otherwise, more than part of the interest is not protected.

According to Articles 121 to 125 of the Supreme People's Court's Opinions on the Implementation of the "General Issues of the General Principles of the Civil Law of the People's Republic of China", borrowing is divided into interest-bearing borrowing and interest-free borrowing, among which the production and operation of citizens The interest rate on borrowing can be appropriately higher than the interest rate of living borrowing. The living lending rate must not exceed twice the bank's similar lending rate. Article 211, paragraph 2 of the Contract Law stipulates: “When the natural person’s loan contract stipulates that interest is paid, the interest rate of the loan shall not violate the state’s regulations on restricting the interest rate of borrowing.” At present, the state stipulates the interest rate of private lending. It is up to four times the bank's similar lending rate. The interest rate of usury is not protected by the state.

Interest can be agreed, but the interest rate cannot be higher than four times the bank interest rate for the same period, and the higher court will not support it. If there is no interest agreement, according to Article 211 of the Contract Law, if the loan contract between natural persons does not agree on the payment of interest or the agreement is not clear, it shall be deemed not to pay interest. Personal loans between citizens are considered to have no interest if they do not stipulate interest. If there is no agreement, there is no interest, but after the repayment date, if there is no repayment, the interest can be calculated according to the bank interest.

5, time issues

In private lending, the time that is prone to controversy includes two points: repayment time and time of writing.
The time of repayment is the time agreed by the creditor and the debtor to return the principal and interest. In reality, people often ignore this agreement or make no clear agreement. The most common expression is “after a certain period of time” repayment, such as “a year later” repayment. "A year later" is literally a time period, not a time point. Repayments of two years, three years or more after borrowing can be understood as “one year later” repayment. Although there are certain rules of interpretation in the law, this way of writing has increased the uncertainty of realizing creditor's rights. The time of repayment is not clear, and it is easy to trigger controversy about the statute of limitations in practice. Therefore, when agreeing on the time of repayment, it is best to make it clear to the date.
The time for the formation of a loan is usually the time the debtor writes the debt. The appointment of this time should also be specific to the date. In practice, the debtor often misses this date intentionally or unintentionally, or simply writes a part of the date. If the debtor only writes on August 1st. Although this time is clear to the creditor’s debtor when writing the loan, it is inevitable that there will be controversy over the timing of the formation of the debit. The ambiguity of the formation time of the loan may result in the calculation of the statute of limitations. Creditors may have to face the legal issue of whether the debit has exceeded the statute of limitations. Although the time of formation of the instrument may be determined by physical evidence identification, it is not absolutely reliable and will increase the expenses of the parties.

If the repayment period is not agreed, the borrower may return it at any time, and the lender may request restitution at any time.

6, dunning problem

It is necessary to make a timely payment. According to Article 135 of the General Principles of the Civil Law, the period of limitation for the protection of civil rights from the people's court is two years, unless otherwise stipulated by law. After the loan has expired, the creditor shall promptly request the debtor to return the loan, and may not delay the dunning due to feelings or other reasons. If the debtor cannot be returned at one time, the lender can ask the borrower to write a repayment plan or reminder of the proof before the expiration of the limitation period, so that the statute of limitations can be recalculated from the date of the new agreement. If the debtor still fails to perform or flee on time, the creditor shall file a lawsuit with the court within 2 years after the expiration of the loan, and collect it according to law. Otherwise, it will be deemed as abandoning the creditor's right and the law will not protect it.

7, the loan guarantee to be prepared

This is not a requirement. The lender should pay attention to understand the borrower's ability to repay. For large or risky borrowings, the borrower may be required to provide a corresponding property mortgage or to find a third party with economic strength as a guarantor. In addition, if the borrower and the lender have not obtained the consent of the guarantor and re-arrange the repayment term or interest rate, the guarantor will no longer bear the guarantee responsibility. Both the mortgage and the guarantee should be signed in writing.

8. Notarization

This is not a necessary condition and only has the highest proof of effectiveness. After drafting the loan agreement, both the borrower and the lender will personally apply to the notary office with personal identification, household registration certificate and loan agreement. After the notarization, the borrower will not repay the loan at maturity. The notary office may issue a compulsory certificate according to the lender's application, and the lender shall apply to the people's court with jurisdiction for enforcement. Principles for handling illegal borrowing

9. Witnesses

This is not a necessary condition. Although it is a matter for both parties to borrow money, it is best to have a third party present, especially a small amount of borrowings to reduce the possibility of future disputes. Unless otherwise agreed, in the private lending relationship, only those who contact and introduce the role and witnesses do not assume the responsibility for the performance of the debt.

10. Recover the loan when you pay back the money.

When you pay back the money, you must ask for a loan on the spot. If the other party loses the loan or finds it for a while, the other party should write the receipt on the spot.

How to prevent legal risks from owing? 2007-03-06 06:15 PM

In daily economic exchanges, more and more debts are used, and disputes arising from irregular regulations are also happening. In order to prevent legal risks:

Pay attention when you owe a debt:

1 writing should be clear, pay attention to capitalization; the name should be written in full name, it is best to match the name on the ID card; be sure to write the date; the space between the content and the signature and seal should not be too large, otherwise it is easy to be Add other content, do your hands and feet; seal should be standardized.

2 Do not write with a faded pen. Use a ballpoint pen or other fading ink pen to write the owe. When it is improperly stored or damp, the writing will become blurred, and some people with ulterior motives will use chemical agents to leave the machine.

3 must be carefully checked. The words after searching for others or the other party should be carefully examined, and they should not be signed or stamped in a confused manner, or they will suffer losses in disputes.

4 When you repay, you must reclaim the debt. When repaying, if the other party says that the debt is not found at the moment, it should be allowed to write a receipt to keep it, so that it will not leave hidden dangers in the future.

The writing process of the second debt:

1 Reason for arrears;

2 The exact amount of the arrears, the amount is indicated in uppercase;

3 to specify the repayment period of the arrears;

4 The liability for breach of contract should be clearly written, such as interest;

5 When necessary, it should be signed by the guarantor and indicate the duration and responsibility of the guarantee.

Three attached debt format:

Due to the purchase of Zhang San XXX, the total price of X yuan is completed, X yuan has been paid, and X yuan is still paid before X X of this year. For each day of delay, add x% of the amount owed.
Arrears: ×××
XXXX X X Day

XXX borrowed from XXXX on X, X, X, X, and X. Yuan. The two parties agreed to borrow money for X months. The agreement is in duplicate. Each party holds a debtor: XXX Creditor: XXX Guarantor: XXX

200X X-X Day

First, the yawning bar must be standardized as far as possible when using the ink, such as carbon, which is difficult to fade and change. The currency before the loan amount is indicated, and the uppercase Chinese characters are used, and the lowercase Arabic numerals are also included in the brackets. The format of the norm is usually "for what reason, how much money is borrowed, what is the interest rate of the loan, when it is returned, the signature of the arrears, the signature of the witness, and the date of the month of a certain year."

Second, pay special attention to the use of polyphonic and polysemous characters. Many Chinese characters in our country have the phenomenon of one-word multi-tone and one-word multi-solution. Once these Chinese characters are used in the debt, it may cause disputes. For example, “also owing RMB 10,000 yuan” can be understood as “returning arrears of RMB 10,000 yuan”, or it can be understood as “still owing RMB 10,000 yuan”.

3. The debtor must be filled by the debtor himself. The debtor originally intended to evade the debt. When the debt was owed, he deliberately asked someone to write it. When the creditor makes a claim, he refuses to repay it on the grounds that he is not his own handwriting. Therefore, the debt must be filled in by the debtor himself. If the arrears are printed, it is best to ask the borrower to sign, stamp and press the handwritten sign in the signature column of the arrears.

4. Careful storage of the owed articles should be taken to prevent theft, loss or contamination of the owed articles. The storage place should be safe, not easy to be wet, and should not be in contact with chemical substances. At the same time, you should make a few copies. In the future, you can send a copy to the borrower to ensure the safety of the original.

5. After the expiration of the loan in time, the creditor shall promptly request the debtor to return the loan. If the debtor cannot be returned for a while, the debtor is required to sign a repayment agreement. If the debtor still fails to perform or flee on time, the creditor shall file a lawsuit with the court within two years after the expiration of the loan, and collect it according to law.