Looking at the calendar in the summer, it is February 24, and it has been almost half a year since the property of Guiz Merchants (Shenzhen) Company was protected by the High People's Court of Guizhou Province. Pen | fun | pavilion www. ｂｉｑｕｇｅ。 Info Xia discussed with Wang Xianyao separately, and prepared to ask the Shenzhen Intermediate People's Court to issue a legal document for seizure, and on the day of expiration, that is, on the 26th of this month, the anti-seizure will be carried out, and the original mortgaged property will be re-controlled in the name of the Hubei branch of the Citizen Bank.

Wang Xianyao was very supportive of Xia's idea, and immediately made a phone call to the economic judge of the Intermediate People's Court, and the court's attitude was very clear: borrowing to repay the money is a matter of course. He promised that after completing the legal documents, he would personally go to the Land Bureau with the bank to seize the real estate, and he was not afraid of being cheated by the Guizhou side.

Xia immediately called Ren Erwei and asked him to go to the Intermediate Court to implement the seizure order, and to keep it a high degree of secrecy.

As soon as he got to work on the morning of 26 February, he took Ren Erwei's car in the summer, went to the Intermediate People's Court to receive the enforcement judge, and quickly drove to the Luohu Land Bureau. The staff of the Land Bureau said: "You are really timely, the property that was unsealed at 0:00 today was sealed again before 9 o'clock." ”

Xia said: "You can see from the computer records that this property turned out to be our collateral and was protected by the other party. Now they didn't have time, and we got the first shot. ”

After the seizure was successful, the judge was taken to the president's office in the summer, and Wang Xianyao received him with great pleasure.

When the matter reached the head office, Shen Lixia, director of the legal department, asked the Hubei branch to write a special report for it, and there was no reason to shirk it in the summer, so she still wrote it.

Later, this case was included in a book by the Citizens Bank as a successful collection case and was publicly published.

People see that in this book, edited by Vice President Luo Yi and titled "New Cases of Bank Prevention and Resolution of Financial Risks", it is written:

Successfully responded to the invalidity of the mortgage clause due to the invalidity of the main contract

【Brief Facts of the Case】

At the beginning of October 1994, the company applied for a working capital loan of 8 million yuan from Hubei Financial Services Co., Ltd. on the grounds that there was still a lack of liquidity in the purchase and sales business of bearing steel, and 9 sets of commercial houses in its own Gaojia Building were used as collateral. After investigation, Hubei Financial Services Society agreed to the company's application, signed a mortgage contract with the company on 12 October 1994, and went through the mortgage registration. On October 17, Hubei Financial Services Co., Ltd. loaned RMB 5.4 million to the company as agreed. The other 2.6 million yuan was loaned by Shenzhen Taishan Industry and Trade Co., Ltd. by way of transfer of mortgage rights.

After the expiration of the contract, Guiz China Merchants (Shenzhen) Development Co., Ltd. failed to repay the principal and interest as scheduled, and the company still did not fulfill its repayment obligations after repeated reminders from Hubei Financial Services Society. On November 20, 1995, Hubei Financial Services Co., Ltd. filed a lawsuit with the people's court, but under the auspices of the court, the parties failed to reach a mediation agreement, and the court rendered a judgment in June 1996.

The judgment held that: "The loan contract signed between the plaintiff and the defendant is invalid because it has exceeded the scope of its business by granting the loan to the defendant. As a result of the invalidity of the contract, both the plaintiff and the defendant are liable, and the principal of 5.4 million yuan and bank interest obtained by the defendant should be returned to the plaintiff. ”

The business scope of Hubei Financial Services Co., Ltd. is: "handling deposits of collective enterprises, private enterprises, and individual industrial and commercial households." Loan settlement business ......" and Gui Z Merchants (Shenzhen) Development Co., Ltd. is a national enterprise, the court ruled that the mortgage contract is invalid, thus also dissolving the mortgage relationship between Hubei Financial Services Society and Gui Z Merchants (Shenzhen) Development Co., Ltd., after receiving the judgment, Hubei Financial Services Society immediately took litigation preservation measures, but the original mortgaged property has been the first to enter the Guizhou Provincial High Court on suspicion of economic fraud on behalf of the original legal representative, in order to protect the state-owned property to carry out protective seizure. The loan officer at the Hubei branch was deeply remorseful about this. At 0:00 on February 26, 1997, when the six-month period of the Guizhou Provincial High Court's seizure expired, as soon as they went to work on that day, the credit officer of the Hubei sub-branch rushed to the Luohu Land Bureau with the economic and judicial officials to carry out the anti-seizure, and achieved success. The property is currently in the process of being auctioned by banks and courts.

【Case Analysis】

Article 5 of the Guarantee Law of the People's Republic of China stipulates that the guarantee contract is a subordinate contract to the main contract, and the main contract is invalid and the guarantee contract is invalid. If the guarantee contract provides otherwise, according to the agreement, after the guarantee contract is confirmed to be invalid, if the debtor, guarantor or creditor is at fault, they shall each bear the corresponding civil liability according to their fault.

The mortgage contract is a kind of guarantee contract, which is a subordinate contract of the loan contract in the mortgage relationship, and the invalidity of the loan contract will inevitably lead to the invalidity of the mortgage contract. If the mortgagor and the debtor are the same person, then the owner (usufruct) of the mortgage is the debtor who has the obligation to perform, and the creditor has the right to seize the property and can be paid off from it, but has lost the priority of repayment. If the mortgagor is a third party, once the mortgage relationship is dissolved, the creditor no longer has the right to exercise its claim against the mortgage, nor does it have the right to receive repayment from the mortgagor, unless the mortgagor is at fault for the invalidity of the mortgage contract. In either case, the failure of the mortgage relationship will inevitably lead to the result that the mortgage has formed a credit loan, and the creditor has lost the priority right to repayment of the collateral. Therefore, the validity of the main contract in the secured loan contract is particularly important. So, what are the circumstances that will lead to the invalidity of a contract? From a legal point of view, there are mainly the following types:

1. Contracts that violate national laws, administrative regulations, policies and directive plans;

2. Contracts concluded by fraud or coercion;

3. Contracts concluded by the agent beyond the authority of the agent (except for those recognized by the agent afterwards);

4. All contracts that violate the national interest or social public interest.

As for the validity of a loan contract, it is generally held in trial practice that the validity of a loan contract should be examined from aspects such as the qualification of the subject and the content of the contract.

1. If the qualification of the subject is not legal, the loan shall be confirmed as invalid. At present, China's financial management regulations stipulate that only banks can engage in loan business, and non-bank financial institutions can only carry out loan business if they hold a "Permit to Operate Financial Business" and have been approved to have the right to operate loan business. Enterprises, organs, social organizations or institutions that do not have the right to operate financial business shall be deemed invalid if they lend money, regardless of the source of funds, in what name and in what form, and their lending relationship shall not be protected by law. If a company or its branch established by a bank or non-bank financial institution does not have the right to operate loans for financial business, its lending activities shall also be invalidated, and its lending relationship shall not be protected by law. Those who are eligible to borrow are mainly enterprises engaged in production and business activities. However, all party and government organs, non-scientific and technological organizations, and public institutions that are not engaged in production and business activities cannot become the subject of loan contracts.

2. If the content of the contract is illegal, the contract shall be confirmed as invalid. Banks and non-bank financial institutions engaged in lending business must not violate laws, regulations and the rules of the head office of the People's Bank of China. Otherwise, the contract shall be invalidated on the grounds that its content is unlawful. If a bank or a non-bank financial institution engages in loan business to the detriment of the national interest or the public interest, or engages in illegal lending, disguised usurious lending, illegal fund-raising, or charges other than loan interest, etc., the contract or part of the clause shall be invalid. If the lender clearly knows that the borrower is using the loan to engage in unfair competition or engage in illegal production or business activities that harm the public interest or harm the lawful rights and interests of others, but still signs a loan contract with the borrower, the contract shall also be invalid on the grounds that the content of the contract is illegal.

In this case, does Hubei Financial Services Co., Ltd. operate beyond its scope, and will it lead to invalidity beyond its scope of business?

With regard to the first question, the Shenzhen Special Economic Zone Branch of People's Bank of China, the higher-level competent authority of Hubei Financial Services Society, has made a special reply: The business scope approved by our branch for the former financial service cooperatives is: "handling the ...... of deposit and loan settlement business of collective enterprises, private enterprises, and individual industrial and commercial households." This is due to the fact that at that time, state-owned industrial and commercial enterprises, agriculture, state-owned foreign trade enterprises, and industrial and transportation enterprises respectively had specialized banks for loans for industry, agriculture, China, construction, and communications, while collective enterprises and private enterprises did not have corresponding lending banks. In order to make up for this shortcoming, the business scope of collective financial institutions such as financial service cooperatives has been approved to handle financial business for collective enterprises, private enterprises, and individual industrial and commercial households. However, since 1992, China's financial system has undergone great changes, and it has become a common phenomenon that "the Agricultural Bank of China has gone to the cities and the Industrial and Commercial Bank of China has gone to the countryside." In particular, in the Shenzhen Special Economic Zone, the crossover of various specialized banking businesses has already begun, and its loan targets are not limited to the scope of the original approval. The People's Bank of China (PBOC) has long been aware of the issue of loans granted by former financial service cooperatives to state-owned enterprises and foreign-funded enterprises in its business audits, and this kind of business overlap is permissible and is not a problem of exceeding the scope of operation.

As for the second question, the Opinions on Several Specific Issues Concerning the Application of Law in Economic Trials (for Trial Implementation) of the High People's Court of Guangzhou Province also have corresponding explanations: if the economic contract entered into by the parties conforms to the principles of equality and voluntariness, and its content and purpose do not violate the prohibitions of laws and administrative regulations, but only violate administrative regulations in form or other aspects, such as exceeding the scope of business (except for monopoly and monopoly cases), violating the business mode or failing to be verified in accordance with law, Notarization, etc., may be dealt with in accordance with the violation of relevant administrative regulations, and shall not be deemed invalid. It can be seen that in this case, after receiving the court's judgment, Hubei Financial Services Co., Ltd. can not only apply for preservation measures against the collateral in a timely manner, but also appeal against the court's erroneous judgment, so as to protect its own rights and interests through various aspects and channels.

After the book was published, I read it from time to time in the summer. He read the professional's comments, and it was as comfortable as drinking an iced drink on a hot day. He said in his heart: "No wonder the common people in ancient times were so afraid of seeing officials, and the official characters were two-mouthed, and they sat in a covered house and said it, it was difficult to think about it without complications." (To be continued.) )