Original title: Wife and brother borrowed 100,000 because he did not borrow a note not to pay back; he sued for repayment, the court rejected the first instance to support the second instance of relatives and friends how to borrow money how to recover debt without hurting feelings?
His wife, ah Bing, bought a house. Ah Huo borrowed 100 thousand yuan from the East and borrowed money from him. Until they found that they could not catch up, they would call to collect debts and record them in court. If there is no debit for 100 thousand yuan, will the court confirm that it is lending? This case has also drawn controversy about human relationship and Jurisprudence: how can relatives borrow money? Should an acquaintance (or a relative) borrow money for ious? How do I borrow ious? How can debt be recovered without hurting the money or hurting the feelings?
100 thousand borrowings without IOU
A Bing (a pseudonym) is the wife of ah Huo (a pseudonym). In June 3, 2014, ah Bing wanted to buy a house and needed money urgently to help his brother-in-law, ah Huo. He borrowed 90,000 yuan from two brothers and put 100,000 yuan into his account.
When the money arrived, it solved the urgent need of Bing. Afterwards, A Huo did not urge his brother-in-law to pay back the money, and even did not let the other side write the debit note, but to his surprise, he subsequently had a lawsuit.
Two trial verdict of different first instance
Ah Bing never paid back. In 2017, A Huo filed a petition against him to a county court in Chongqing, asking him to order A Bing to repay the principal of the loan of 100,000 yuan.
The case opened as scheduled, the defendant Ah Bing did not appear in court, Ah Huo told the empty dock since June 2014 what happened: "Almost unrelated, connected, also can not talk about the repayment of money."
At the first instance of the court, A Huo provided a telephone recording: before the prosecution, he contacted A Bing to ask for repayment. Because ah Huo can not confirm that the caller is ah Bing himself. The court asked him to provide supplementary evidence and to record the recording into a CD-ROM. However, until the sentencing, ah Huo failed to provide the evidence. The court of first instance dismissed the claim of ah Huo.
A fire refused to accept the first instance decision and appealed to the second middle court of the city. In the second instance, A Bing commissioned his mother to appear in court. On the court, ah Bing's mother confirmed that the person in the recording was ah Bing himself.
After hearing the case, the Municipal Second Central Court held that the establishment of the loan relationship between the two parties could be confirmed by combining the contents of the telephone recording. In the end, the Court changed its judgment according to law, supported Ah Huo's lawsuit request and ordered Ah Bing to repay Ah Huo's loan principal of 100,000 yuan. The judgement is now in force.
No debts can be identified.
The judgments of the first and second instance are different. Although Ah Huo has gone through twists and turns, he is hopeful to borrow 100,000 yuan. For this case, the judge of the second intermediate people's Court of Chongqing also commented.
In this case, A Huo failed to show a written creditor's rights certificate (debit slip) that it had a loan relationship with A Bing. A Bing's mother also denied the loan relationship in the second trial, but she accepted that the other party in the recording of the call was A Bing himself.
The judge confirmed that A Huo and A Bing had reached a loan agreement of 100,000 yuan, and A Bing did receive a loan of 100,000 yuan.
According to the relevant legal provisions, the court of second instance determined that Ah Huo had supported Ah Huo's lawsuit request by presenting "other evidence that can prove the existence of the legal relationship of borrowing and lending".
The judge pointed out that it is a common practice for debtors to issue creditor's right certificates to creditors in private lending relationships. Because the creditor's right certificate (such as a debit slip) can clearly indicate the parties to reach a loan agreement, and by signature, printing and other means to fix the meaning of the expression.
However, debt certificate is not a necessary condition to prove the legal relationship of private lending. As a practical contract, whether the borrower and the lender reach a loan agreement and whether the payment is delivered is an important basis for the court to judge whether the loan contract is effective.
How to borrow money from relatives and acquaintances?
Relatives, acquaintances borrow money, do not pay attention to details, easy to fall into emotional collapse, money will not come back. If it is possible, it is best to say that the front and the leave are clearly written. In this way, the emotional interests are taken into account. Even if we tear the face, we can save the money.
How to borrow money from relatives and acquaintances? The legal profession has combed several key words.
Keywords 1: writing ious
The information on the slip should include at least the borrower's name, ID card number, amount of money borrowed, time of borrowing, time of repayment, and time of payment. If interest is required, interest must be written down. Finally, the borrower signs and prints. Also note that IOUS and IOU are different. Borrowing is mainly due to borrowing, and arrears may be due to trading, leasing, interest and other reasons. We can not confuse the two concepts of "borrowing" and "lacking".
Keywords 2: preservation of evidence
The contract law stipulates that if payment is made by bank transfer, online electronic remittance or through the network loan platform, the loan contract shall take effect when the funds reach the borrower's account. That is to say, the records that we transfer through Alipay and WeChat can be used as loan vouchers, so we must keep them.
If there is no debit note or cash transaction due to circumstances, some additional evidence may be added before deciding to sue. For example, you can give your partner some suggestive language in your daily life. For example, I am a little bit tight recently, and I have to pay a lot of bills.
If the other party pretends not to hear, does not respond, and the other party has exceeded the repayment date, then you choose the appropriate occasion to bring the recording equipment, bring the witness straight to him.
It should be noted that the attitude should be firm, ask the other side to explain the reasons for non-repayment, write a repayment plan, cover the date, amount. For a few days, pay attention to recording and prevent future regrets.
Keywords 3: legal use
The judicial stipulates the limit of two lending annualized interest rates.
The first is the judicial protection zone, and the private lending court with an annual interest rate of less than 24% is given judicial protection.
The second one is invalid area, and private lending with annual interest rate exceeding 36% will be invalid.
The third is the natural debt zone, with an annual interest rate of 24% to 36%, which acts as a natural debt and is paid off or not paid. If a lawsuit is to be instituted, the court will not protect the lender.
If the borrower knowingly lends the other party money, it is used for gambling, drug trafficking, drug abuse and other illegal activities. The law is neither protected nor returned to court proceedings. In other words, finding out the purpose of acquaintance (relatives) borrowing money is impure.
This reporter Zhang Xu Intern Zhong Yao
Editor in chief: Zhang Shen
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