浙江利群律师事务所

陈烨律师

2011年4月20日

案情介绍：2006年8月10日借款人王某、陈某（系夫妻关系）因缺资金将自有房产抵押给某金融机构向其融资，2008年3月起两贷款人逾期未按约归还借款，故某金融机构委托本所起诉催讨本次借款本息。但两贷款人对本次借款予以否认，辩称：借款合同签字时空白，借款用途不对，借款借据也系在空白的情况下签字；借款后存折在他人处且别他人领取并向公安机关报案立案，故本案借款与他们无关，不应由他们归还。本案经过一、二审，现将二审代理词摘录如下：

尊敬的审判长、审判员：

中国某银行股份有限公司台州分公司（被上诉人）因与上诉人王某、陈某借款合同纠纷一案委托浙江利群律师事务所并指派陈烨律师担任其二审的诉讼代理人。现依据一审判决书、二审的庭审调查情况及本案争议焦点，提出代理意见，请合议庭参考。

一、被上诉人贷款手续合法合规，与上诉人间借款合同行为合法有效

两上诉人系夫妻关系，2006年8月10日上诉人王某因向被上诉人借款，将两上诉人共同所有的房屋作为该借款的担保，当日三方亲自签订《个人购房担保借款合同》一份。为了此次贷款上诉人向被上诉人提供了身份证明、结婚证明、户口本、房产证明、收入证明等，并将两上诉人所有房屋在某市房管部门办理了抵押登记，抵押权人为被上诉人。2006年8月23日被上诉人将720000元贷款发放到上诉人王某的账户。至此被上诉人已履行了借款合同约定的义务，双方借款合同关系合法有效。上诉人辩称系在空白的借款合同上签字，认为借款无效，但其没有提供相应证据证实，也不符合常理，故其辩称不成立。

二、上诉人对其开户行为是知情，且其代理人代为开户行为符合法律法规规定

上诉人王某将自己的身份证原件交给其代理人梁某开户，符合国务院于2000年4月1日颁布实施的《个人存款账户实名制规定》第六条规定：个人在金融机构开立个人存款账户时，应当出示本人身份证，使用实名。代理他人在金融机构开立个人存款账户的，代理人应当出示被代理人和代理人的身份证件。以及根据中国某银行《关于个人存款账户实名制规定》实施细则第五条规定：代理他人开立个人存款账户时，应在存款凭条上填写代理人和被代理人的实名证件名称和号码，并出示代理人和被代理人的实名证件。按照上述开户的操作规程，上诉人王某于2006年8月6日在被上诉人处开立了账户，账号为xxxx。而且该账户在双方签订的《个人购房担保借款合同》第六条予以明确。从上述行为反应出王某对其开户行为是明知的。但上诉人王某辩称其代理开户行为违反法律法规规定，显然是对法律法规理解和适用的错误认识，并且其开户行为发生在2006年8月6日，而被上诉人向王某xxxx账户发放贷款的时间在2006年8月23日。上诉人王某如认为其账户被别人盗用或遗失，完全可以通过挂失存折等手段实施救济。因此上诉人王某开户行为合法合规。

三、上诉人王某账户上的取款行为合规且明知

根据《中国某银行浙江省分行临柜业务操作规程》第四条规定：大额取现（人民币50000元以上，外币10000美元以上）的审验身份证是否符合实名制要求，对于代理取款的还需要审验代理人有效身份证件并在取款凭条上摘录身份证件的种类和号码。从王某xxxx账户取款情况看，其中两笔（2006年8月23日取款209200元和2006年8月31日取款180000元）超过了人民币50000元，但按照上述程序被上诉人在办理上诉人取款业务时，已审验和摘录代理人的身份情况。而且上诉人王某将自己身份证原件交给代理人后才能办理，故王某对取款行为是明知的。

四、从上诉人账户上还贷记录看，两上诉人对于借款也是知情的

上诉人贷款从2006年8月23日发放到2008年2月23日，长达一年半的时间里均系正常还贷，其中一笔还款发生在2006年10月22日的，代为上诉人王某还款的是李某，而上诉人为本案贷款向被上诉人提供的收入证明中也有李某的签名，据了解上诉人王某与李某系连襟关系。而且本案还款逾期前的最后三笔还款即2007年12月、2008年1月、2008年2月的三期还款，均系另一上诉人陈某亲自还款，而且在此之前上诉人王某账户上的还贷也系正常还款，被上诉人并没有向其催讨，故两上诉人对其借款是明知，对其应还款项也是明知的。而上诉人辩称因女儿出国，防止信用等级下降，迫不得己进行三期还款，不符合客观事实。

综上，本代理人认为本案双方借款合同关系系真实意思表示，合法有效。上诉人应按合同约定承担还款付息及违约责任。至于贷款后上诉人认为账户内的存款被人冒名提取，与本案无关。故为了保护国家金融机构财产，请求贵院驳回上诉请求，维持原判！

案件结果及警示：本案现已终审判决，由两借款人归还借款本息并赔偿相关损失。贷款人在贷款过程中一定要仔细阅读借款合同的内容，以免逾期还款导致违约。并保管好存折和身份证，即便是再好的亲戚关系或朋友关系，也不能随意借用，我们应当从关系型社会向契约型社会转变；如有遗失应当及时挂失，以免造成法律上的不利后果。

Zhejiang Liqun Law Firm

Lawyer Chen Ye

April 20, 2011

Case Description: On August 10, 2006, the borrowers Wang and Chen (in a marital relationship) mortgaged their own property to a financial institution for financing due to a lack of funds. Since March 2008, the two lenders failed to repay the loan as agreed upon. Therefore, a financial institution entrusted this institution to sue and demand the principal and interest of this loan. But the two lenders denied the loan, arguing that the signing of the loan contract was blank, the loan purpose was incorrect, and the loan receipt was also signed in blank; After borrowing, the passbook is kept at someone else's place and is not collected by others and reported to the public security organs for filing. Therefore, the loan in this case has nothing to do with them and should not be returned by them. This case has gone through the first and second trials, and the excerpts of the second trial proxy words are as follows:

Dear Chief Justice and Judge

A Chinese bank limited by shares, Taizhou Branch (appellee) entrusted Zhejiang Liqun Law Firm with a loan contract dispute with appellants Wang and Chen, and appointed Lawyer Chen Ye as its litigation agent for the second instance. Now, according to the verdict of the first instance, the court investigation of the second instance and the focus of the dispute in this case, we propose the agency opinion for the reference of the Judicial panel.

1.The loan procedures of the appellant are legal and compliant, and the loan contract between the appellant and the appellant is legal and valid

The two appellants are in a marital relationship. On August 10, 2006, appellant Wang borrowed money from the respondent and used the jointly owned house of the two appellants as collateral for the loan. On that day, the three parties personally signed a "Personal Purchase Guarantee Loan Contract". For this loan, the appellant provided the appellee with identity certificate, marriage certificate, household register, house property certificate, income certificate, etc., and registered the mortgage of the houses owned by the two appellants in the housing management department of a city, with the Hypothec as the appellee. On August 23, 2006, the appellant granted a loan of 720000 yuan to the appellant Wang's account. At this point, the appellant has fulfilled the obligations stipulated in the loan contract, and the loan contract relationship between both parties is legal and valid. The appellant argued that he signed the blank loan contract and believed that the loan was invalid, but he did not provide corresponding evidence to prove it, which was not in line with common sense. Therefore, his argument was not valid.

2.The appellant is aware of his/her account opening behavior, and his/her agent's account opening behavior on behalf of him/her complies with laws and regulations

The appellant Wang gave the original of his ID card to his agent Liang to open an account, which was in line with Article 6 of the Regulations on the Real Name System of Individual Deposit account promulgated and implemented by the State Council on April 1, 2000: When an individual opens an individual Deposit account in a financial institution, he shall present his ID card and use his real name. If an agent opens an individual Deposit account in a financial institution on behalf of others, the agent shall present the identity documents of the principal and the agent. According to Article 5 of the Detailed Rules for the Implementation of the Provisions on the Real Name System of Individual Deposit account of a Chinese bank, when opening individual Deposit account on behalf of others, the name and number of the real name certificates of the agent and the principal shall be filled in the deposit slip, and the real name certificates of the agent and the principal shall be presented. According to the operating procedures for opening an account mentioned above, appellant Wang opened an account with the respondent on August 6, 2006, with the account number xxxx. And this account is clearly stated in Article 6 of the Personal Housing Guarantee Loan Contract signed by both parties. The above behavior reflects that Wang is aware of his account opening behavior. However, the appellant Wang argued that his act of opening an account on behalf of Wang violated the provisions of laws and regulations, which was clearly a misunderstanding of the understanding and application of laws and regulations. His act of opening an account occurred on August 6, 2006, while the appellant granted a loan to Wang's xxxx account on August 23, 2006. If the appellant Wang believes that his account has been embezzled or lost by others, he can fully implement relief measures such as reporting the loss of his passbook. Therefore, the appellant Wang's account opening behavior is legal and compliant.

3.The withdrawal from the account of appellant Wang is compliant and knowingly

According to Article 4 of the "Operating Regulations for Over-the-Counter Business of a Bank of China Zhejiang Branch", it is required to verify whether the ID card for large withdrawals (RMB 50000 or more, foreign currency 10000 or more) meets the requirements of the real name system. For withdrawals by proxy, it is also necessary to verify the agent's valid identity document and extract the type and number of the ID card on the withdrawal receipt. From the withdrawal situation of Wang's xxxx account, two of them (withdrawal of 209200 yuan on August 23, 2006 and withdrawal of 180000 yuan on August 31, 2006) exceeded RMB 50000. However, according to the above procedures, the appellant has verified and extracted the identity of the agent when handling the appellant's withdrawal business. Moreover, the appellant Wang can only handle the withdrawal process by handing over his original ID card to the agent, so Wang is aware of the withdrawal behavior.

4.From the loan repayment records on the appellant's account, it can be seen that the two appellants are also aware of the loan

The appellant's loan was disbursed from August 23, 2006 to February 23, 2008, and was repaid normally for a period of one and a half years. One of the repayments occurred on October 22, 2006, and it was Li who repaid on behalf of appellant Wang. The income certificate provided by the appellant to the appellant for the loan in this case also included Li's signature. It is understood that appellant Wang and Li are closely related. Moreover, the last three repayments before the repayment deadline in this case, namely December 2007, January 2008, and February 2008, were all personally repaid by another appellant, Chen. Prior to this, the repayment on the appellant Wang's account was also normal, and the appellant did not demand payment from him. Therefore, the two appellants were aware of their loan and the repayment amount they should have. The appellant argues that due to her daughter's departure from the country, preventing a decline in credit rating, she was forced to make three installments of repayment, which is not in line with objective facts.

In summary, the agent believes that the loan contract relationship between the two parties in this case is a true and valid expression of intention. The appellant shall bear the responsibility for repayment, interest payment, and breach of contract as stipulated in the contract. As for the appellant's belief that the deposit in the account was falsely withdrawn after the loan, it is not related to this case. Therefore, in order to protect the property of national financial institutions, we request your court to reject the appeal and uphold the original judgment!

Case Result and Warning: This case has now been finally adjudicated, and the two borrowers will repay the principal and interest of the loan and compensate for the related losses. The lender must carefully read the content of the loan contract during the loan process to avoid default caused by overdue repayment. And keep your passbook and ID card safe, even if it is a good relationship with relatives or friends, you cannot borrow them at will. We should transition from a relationship oriented society to a contract oriented society; If there is any loss, it should be reported in a timely manner to avoid legal adverse consequences.