The Shenzhen Intermediate People's Court ruled in two cases, both of which stated that the loans made by the whole people enterprises in the financial service cooperatives were beyond the scope of the financial service cooperatives, and were invalid contracts. Pen @ fun @ pavilion wWw. ｂｉｑUｇE。 Info Summer feels like this is a new topic. Among them, the judgment of Guiz China Merchants (Shenzhen) Development Co., Ltd. reads:

Shenzhen Intermediate People's Court of Guangzhou Province

Civil Judgments

(1996) Shen Zhong Fa Jing Chu Zi No. 1026

Plaintiff: Hubei Branch of Minmin Bank (formerly Shenzhen Hubei Financial Services Society). Address: Hubei Road, Luohu District, Shenzhen.

Person in charge: Wang Xianyao.

Entrusted agent: Hao Wenting, legal counsel of Hubei Branch of Citizens Bank.

Defendant: Guiz China Merchants (Shenzhen) Development Co., Ltd. Address. Gaojia Building, Chunfeng Road, Luohu, Shenzhen.

Legal representative: Shao Hua.

In the above-mentioned cases of the plaintiff suing the defendant over a mortgage contract dispute, this court formed a collegial panel in accordance with the law and conducted an open court hearing. The plaintiff's agent ad litem, Hao Wenting, appeared in court to participate in the litigation, and the defendant did not appear in court to participate in the litigation after being served by public notice.

The case is now closed.

The plaintiff alleged that on IO 12, 1994, the plaintiff and the defendant entered into a mortgage contract. The content of the contract is as follows: the defendant borrowed RMB 5.4 million from the plaintiff in two phases, with a monthly interest rate of 12.078‰ and a term of one year. The defendant mortgaged his property in Gaojia Building, Chunfeng Road, Shenzhen. After the contract was signed, the plaintiff granted the loan in accordance with the contract. However, to date, the defendant has not repaid the principal and interest of the plaintiff's loan. Therefore, the court was requested to order the defendant to repay the principal and interest of the plaintiff's loan, penalty interest, and bear the litigation costs of the case.

The defendant did not plead.

It was ascertained that on 12 October 1994, the plaintiff and the defendant entered into a Mortgage Contract. The contract stipulates that the plaintiff will lend RMB 8 million to the defendant, the term of which is from 17 October 1994 to 17 October 1995, the purpose of which is working capital, the monthly interest rate is 12.078‰, and the loan plan is to be used in three installments. The first instalment was borrowed for $2.9 million on October 17, 1994, and the second installment was borrowed for $2.5 million on October 23, 1994. The first instalment was repaid with the principal of RMB2.9 million on October 17, 1995 and the second tranche was repaid with the principal of RMB2.5 million on October 23, 1995. In the contract, the defendant pledged his own property as collateral for the loan. The property is located in rooms A, B, C, D, E, F, G, and M on the 14th floor of Gaojia Building, Chunfeng Road, Luohu District, Shenzhen (the real estate certificate numbers are: Shenfang Di Zi No. 1051687 to 1051693 and 1051695). The mortgage contract was also notarized by the Shenzhen Notary Office, and the contract also provided for liability for breach of contract. The property has been registered as a mortgage. On October 17 of the same year, the plaintiff and the defendant also signed a loan IOU, in which the IOU on 17 IO stipulated: the loan amount: RMB 2.9 million, the value date: October 17, 94, the maturity date: October 17, 95, and the monthly interest rate: 12.078‰. On October 21, the two parties signed the second IOU, stipulating that the loan amount: RMB 2.5 million, the value date: IO 21, 1994, the maturity date: October 21, 95, and the monthly interest rate was 12.078‰. After the expiration of the term of the contract, the plaintiff claimed that the defendant had only returned the interest before April 20, 1995, and that the principal of the loan and the remaining interest were still owed, but the defendant did not appear in court, nor did it provide relevant evidence.

Another investigation: The business scope of the former Shenzhen Hubei Financial Services Cooperatives were: handling deposits and loan settlement business for collective enterprises, private enterprises, and individual industrial and commercial households; handling personal savings deposit business; and handling insurance and other collection and payment business on behalf of others. Handle other financial services approved by the People's Bank of China. In June 1995, the plaintiff was restructured and renamed from the service cooperative. The plaintiff granted the loan without the approval of the People's Bank of China.

Re-investigation: The defendant is an enterprise owned by the whole people.

The determination of the above facts is evidenced by mortgage loan contracts, notarial deeds, loan IOUs, business licenses, trial records, etc.

The court held that the plaintiff's predecessor, Shenzhen Hubei Financial Services Co., Ltd., had extended the loan to the defendant, which exceeded the scope of its business, so the mortgage loan contract signed between the plaintiff and the defendant was invalid. The plaintiff and the defendant are both liable for the invalidity of the contract. The defendant shall return the loan obtained as a result to the plaintiff. In accordance with the provisions of Article 7, Paragraph 1 and Article 16, Paragraph 1 of the Economic Contract Law of the People's Republic of China, the judgment is as follows:

1. The mortgage contract signed by the plaintiff and the defendant is invalid and is not protected by law.

2. The defendant shall return the principal of the loan of RMB 5.4 million and the interest to the plaintiff (the interest shall be calculated in stages from April 21, 1995 to the date of repayment). During the loan period, the interest rate of the People's Bank of China for the same period shall be applied; an additional 20 per cent will be charged until 8 December 1995; 5/10,000 per day from 9 December 1995 to 30 April 1996; and 4/10,000 per day from 1 May 1996 to the date of repayment.

The above-mentioned amount shall be paid by the defendant within 15 days from the date on which this judgment takes legal effect, and the interest on the debt for the period of delayed performance shall be doubled in accordance with the provisions of the Civil Procedure Law.

The case acceptance fee in this case is RMB 40,328, and the plaintiff and the defendant shall each bear RMB 20,164 (the case acceptance fee has been paid in advance by the plaintiff and will not be refunded, and the amount borne by the defendant shall be paid to the plaintiff within 10 days from the date of the legal effect of this judgment).

If you are not satisfied with this judgment, you may submit an appeal petition in triplicate to this court within 15 days from the date of service of the judgment, and appeal to the High People's Court of Guangzhou Province.

Presiding Judge: Ye Youxin

Judge: Tan Dangsi

Shenzhen Intermediate People's Court of Guangzhou Province (India)

July 8, 1996

Clerk: Yi Xueflakes

The other judgment is similar, indicating that it is a formal judgment made by the Intermediate People's Court after studying the bank's operation beyond the scope of its business license.

Shenzhen Intermediate People's Court of Guangzhou Province

Civil Judgments

(1996) Shen Zhong Fa Jing Chu Zi No. 1045

Plaintiff: Hubei Branch of Citizens Bank. Address: Hubei Road, Luohu District, Shenzhen.

Person in charge: Wang Xianyao.

Entrusted agent: Hao Wenting, legal counsel of Hubei Branch of Citizens Bank.

Defendant: Shenzhen Taishan Industry and Trade Co., Ltd. Address: Gaojia Building, Chunfeng Road, Luohu, Shenzhen.

Legal representative: Shao Hua.

Defendant: Guizhou China Merchants (Shenzhen) Development Co., Ltd. Address: Gaojia Building, Chunfeng Road, Luohu District, Shenzhen.

Legal representative: Shao Hua.

In the case of a mortgage contract dispute between the plaintiff and the defendant, after this court accepted the case, it formed a collegial panel in accordance with the law and conducted a trial in open court. The plaintiff entrusted an agent to participate in the lawsuit, and the defendants Shenzhen Taishan Industry and Trade Co., Ltd. (hereinafter referred to as the first defendant) and Guiz China Merchants (Shenzhen) Development Co., Ltd. (hereinafter referred to as the second defendant) did not appear in court to respond to the lawsuit after being lawfully summoned.

The case is now closed.

The plaintiff alleges that on October 22, 1994, the plaintiff and the first defendant signed a mortgage contract, which stipulated that the plaintiff would lend RMB 2.6 million to the first defendant for the purchase of commercial materials, and the loan term would be divided into two phases, of which the first tranche of 1.5 million yuan would be for half a year, with a monthly interest rate of 9.9‰ from October 23, 1994 to April 23, 1995, and the second tranche The 1051695 1051687 term of the loan of 1.1 million yuan was one year, from October 23, 1994 to October 23, 1995, with a monthly interest rate of 12.078‰; After the contract was signed, the plaintiff transferred RMB 2.6 million to the account of the 1st defendant in accordance with the contract. After the expiration of the contract, the 1st Defendant failed to repay the principal and interest of the Plaintiff's loan, and the 2nd Defendant was not jointly and severally liable for repayment, so the Court requested the court to order: (1) the two Defendants to repay the Plaintiff's loan principal of RMB 2.6 million, interest and penalty interest of 400,000 Yuan, totaling 3 million Yuan, and (2) order the two Defendants to bear all the litigation costs of the case.

The defendants did not respond to the lawsuit.

This court ascertained that on October 22, 1994, the plaintiff and the first defendant signed a "mortgage contract", which stipulated that the plaintiff would borrow RMB 2.6 million from the first defendant for the purpose of purchasing commercial flow materials, and the loan term was divided into two phases, of which the loan term of the first phase of 1.5 million yuan was half a year, from October 23, 1994 to April 23, 1995, the monthly interest rate was 9.9‰, and the term of the second loan of 1.1 million yuan was one year, starting from October 1994 From the 23rd to October 23rd, 1995, the monthly interest rate was 12.078‰. The second phase of the loan was secured by the 2nd Defendant with 8 properties located in Gaojia Building, Chunfeng Road, Luohu, Shenzhen (Real Estate Certificate No. 1051687-1051695), and the 2nd Defendant issued a Mortgage Statement. After the contract was signed, the plaintiff transferred RMB 2.6 million to the account of the 1st defendant in accordance with the contract. After the expiration of the contract, the plaintiff claimed that the first defendant had only paid the interest of RMB 234,419.60 before May 20, 1995, and still owed the principal amount of RMB 2.6 million and the interest and penalty interest from May 21, 1995 to the present, while the second defendant did not appear in court and did not provide relevant evidence.

The business scope of the former Shenzhen Hubei Financial Services Society is: handling deposits and loan settlement business of collective enterprises, private enterprises, and individual industrial and commercial households, handling personal savings deposit business; handling insurance and other collection and payment business, and handling other financial business approved by the People's Bank of China. In June l995, the plaintiff was restructured and renamed by the service cooperative. The plaintiff granted the loan without the approval of the People's Bank of China.

Re-investigation: The defendant is an enterprise owned by the whole people.

The determination of the above facts is evidenced by the mortgage loan contract, mortgage statement, loan IOU, business license, trial transcript, etc.

The court held that the plaintiff's predecessor, Shenzhen Hubei Financial Services Co., Ltd., had extended the loan to the defendant, which exceeded the scope of its business, so the mortgage loan contract signed between the plaintiff and the first defendant was invalid. The plaintiff and the defendant are both liable for the invalidity of the contract. The main contract is invalid, and neither is the mortgage. However, the second defendant should still be jointly and severally liable for the repayment of the principal and interest of the loan. In accordance with the provisions of Article 7, Paragraph 1, Article 15 and Article 16, Paragraph 1 of the Economic Contract Law of the People's Republic of China, the judgment is as follows:

1. The mortgage contract signed by the plaintiff and the defendant is invalid and is not protected by law. Guiz China Merchants (Shenzhen) Development Co., Ltd. uses the real estate located in Gaojia Building, Chunfeng Road, Luohu, Shenzhen (real estate certificate number: No. 1051687-1051695) as a mortgage.

2. Shenzhen Taishan Industry and Trade Co., Ltd. returned the principal of the plaintiff's loan of RMB 2.6 million, interest and penalty interest (calculated in stages from May 21, 1995 to the date of repayment, and the loan period shall be calculated according to the loan interest rate of the People's Bank of China for the same period, and 20% will be charged until December 18, 1995, and 4/10,000 per day from December 19, 1995 to the date of repayment).

The above-mentioned amount shall be paid to the first defendant within 15 days from the date on which this judgment takes legal effect, and if it fails to do so, the interest on the debt during the period of delayed performance shall be doubled in accordance with the provisions of the Civil Procedure Law.

3. The 2nd Defendant shall be jointly and severally liable for the repayment of the above-mentioned debts by the 1st Defendant.

The case acceptance fee in this case is RMB 25,010, and the plaintiff and the first defendant shall each bear RMB 12,505 (the case acceptance fee has been paid by the plaintiff in advance and will not be refunded, and the amount borne by the defendant shall be paid to the plaintiff within 10 years from the date on which this judgment takes legal effect)

If you are not satisfied with this judgment, you may submit three copies of the appeal petition to this court within 15 days from the date of service of the judgment, and appeal to the High People's Court of Guangzhou Province.

Presiding Judge: Li Xinghua

Judge: Tan Dangsi

Shenzhen Intermediate People's Court of Guangzhou Province (India)

July 11, 1996

Clerk: Yi Xueflakes

After reading it in the summer, he took the verdict to the president's office and said to Wang Xianyao: "President, you see that the service cooperative's loans to all enterprises have been invalidated, which may cause a chaotic state in the future in terms of property control. Because the main contract is invalid and the slave contract is also invalid, the legal repayment of the loan mortgaged and pledged to a third party poses a potential risk problem. ”

Wang Xianyao heard that in Xia's words, the concept of law was very clear, and he couldn't help but praise: "Lao Xia, you seem to have studied law, and you have a certain level of legal professionalism?"

Summer said: "The level of professionalism is not enough. In the past, I have fought several lawsuits for business and private reasons, and I feel like I have been a doctor for a long time. Because, if you didn't go in and learn legal knowledge at that time, it would mean that you would lose the case. ”

Wang Xianyao said: "A person should be like this, do one line, love one line, and be dedicated to one line." In this matter, I made a phone call and asked Vice President Li of the Intermediate People's Court to see what was going on with the judgment of the invalid contract. After speaking, Wang Xianyao checked his address book, pressed the speakerphone button, and dialed the phone number of Vice President Li of the Shenzhen Intermediate People's Court. I heard the other party say: "Intermediate Court, please tell me something." ”

Wang Xianyao said: "Dean Li, I would like to ask you a question for the elderly. ”

Vice President Li said: "You are-ah, Xianyao! Hey, I said: How did you become so modest? The food in the bank is delicious, and the progress is fast." ”

Wang Xianyao said on the phone: "Hey, leader, I said, how can you hear that I am here? Your ears are so good, you really deserve to be a talent." ”

A voice came from the phone: "Xianyao, you don't play with me." If there's anything you want me to help with, just say it!"

Wang Xianyao said seriously: "I know that the leader is busy and I dare not disturb more. Recently, there have been several cases in our bank, that is, the loan was given to a national enterprise, and the old man was sentenced to invalidate the contract, and we are not able to digest this legal knowledge. ”

Vice President Li laughed and said: "There is no problem with this, it is a business behavior beyond the scope of business and the contract is judged to be invalid." However, the creditor's rights and debts of both parties still exist, and it is only natural to borrow to repay the money. Its obligations still have to be fulfilled!"

Wang Xianyao said: "There is another problem: that is, the original mortgage, some are the company's property mortgage, and some are third-party mortgages, so if we are judged invalid, won't we be yellow?"

Vice President Li said: "As for the mortgage of the company's property, we can also pursue and dispose of its property in accordance with the law, and as for the mortgage of a third party, it depends on the specific situation of the debt, which is generally more troublesome." ”

Wang Xianyao said: "Thank you, Dean, as soon as you teach me like this, my understanding will be much clearer. Thank you!"

"You're welcome. ”

Wang Xianyao put down the phone and said to Xia: "Listen, it's similar to what you said." There are still solutions, but there are problems. In the future, when it comes to judgments in this regard, attention should be paid to the use of legal means at the first opportunity. ”

Summer said, "Yes." ”

Then, he told Wang Xianyao: "In the morning, I took the comrades of the inspection team of the head office to look at the real estate of the Huanglong Hotel. ”

Wang Xianyao said: "You go, it's best to let the comrades from the head office help knock Huang Zhonghui and make him feel pressure." Bring some money, if you can't come back at noon, can you invite them to dinner over there!"

Summer said, "Good. (To be continued.) )