[Key words] private lending, lending relationship, mortgage
[introduction of the lawyer in this case] Yuan Xin, a partner of Liaoning Tongfang law firm, has successfully handled many complicated and difficult civil, commercial and administrative litigation cases. Lawyer Yuan Xin's work style is steady and steady, and his work is meticulous and serious. His legal service work has been fully affirmed by clients. He has served as a legal adviser and agent in other civil and commercial litigation cases for many times, and has rich litigation agency experience, which has saved a lot of economic losses for the parties.
Zhou Yang, practicing lawyer and consultant of Liaoning Tongfang law firm. Since his practice, he has been serious and rigorous in handling cases, steady and steady in style, and his work achievements have been fully recognized by customers. He has successfully handled many complex and difficult civil and commercial litigation cases independently. In addition to providing litigation agency services for clients, lawyer Zhou Yang has provided legal advisory services for many large companies. He has drafted and amended legal documents such as company contracts for many times, analyzed, answered and handled legal problems that occurred or potential in customer management, proposed appropriate solutions, and reduced the legal risks of clients. Lawyer Zhou Yang has been engaged in legal affairs of foreign investment banks for many years, and has in-depth research and rich practical experience in enterprise restructuring, company restructuring, capital operation, etc.
[judgment points] first, whether the loan relationship is established; Second, whether the lending behavior is actually performed.
[basic case] Cao, the respondent of the retrial (the plaintiff of the original trial), claimed that Yang, the respondent of the retrial (the defendant of the original trial), borrowed 900000 yuan from him on May 2, 2011, and signed the promissory note, receipt and repayment commitment. However, the retrial applicant claimed that there was no loan fact, and the document signed by him was the blank standard document provided by the respondent Cao when his son borrowed money from the respondent CaO on March 28, 2011, and the date was changed by the respondent Cao.
After the first and second trials of this case, both parties supported the lawsuit request of the respondent Cao and ordered the applicant yang to assume the repayment obligation. Later, the applicant Yang applied to the higher people's Court of Liaoning Province for retrial, and after the retrial review, the Dalian intermediate people's court was instructed to retrial the case.
[judgment result] the retrial decision supported the retrial request of the applicant Yang, and the judgment rejected the lawsuit request of the respondent Cao.
[reasons for adjudication] in the trial of private lending cases, it is necessary to comprehensively judge and verify whether the lending facts have occurred in combination with the lending amount, payment delivery, economic capacity of the parties, and trading habits of the parties. In this case, the actual user who has a loan relationship with the respondent Cao is the son of the applicant Yang. The applicant Yang is not the actual borrower and user, and the loan relationship with the respondent Cao is not established. Moreover, the fact that the loan relationship claimed by the respondent Cao does not conform to common sense, logic and trading habits, and the evidence of the loan facts is insufficient, which is not supported.
[legal basis] articles 170 and 207 of the civil procedure law and Article 35 of the guarantee law.
[lawyer's point of view] this case is a malicious lawsuit by the respondent Cao, who alters evidence and fabricates loan facts. The respondent has been engaged in "routine loan" for many years and has rich operating experience. He uses the blank documents signed by the applicant to initiate a malicious lawsuit to achieve his purpose of occupying other people's property. In the retrial trial, the agent took advantage of the loopholes in the statements of the respondent in previous trials, and fully expounded the claims of the retrial applicant in combination with the trading habits, social common sense and behavioral logic of both parties, which was finally recognized by the retrial court and safeguarded the legitimate rights and interests of the parties. From the first instance in 2014 to the conclusion of the retrial in December 2018, this case has gone through four years, from the grassroots to the third level courts of the Supreme People's court, which has certain reference significance.