【案情概要】

原告刘某诉称借款2170万元给东升公司、徐某（东升公司法定代表人）, 有借款人签字确认的122张借条为据，借条均载明：“今向刘某借款现金×元；在约定借款期限届至时，应于归还本金当日支付利息，利息按银行商业经营性贷款利率（或银行同期贷款利率）的四倍计算”。借款人在借期内定期向刘某出具《保证按时还款承诺书》；此后双方签订《结算协议书》，约定借款人应于同年7月19日前还清借款。东升公司、徐某另出具《承诺书》，承诺就占用资金给刘某造成的投资损失，另支付补偿款253万元。2010年7月19日，约定还款期限届至，刘某向公安机关报警称其至借款人公司取款，在复印借条原件时，徐某将封存借条原件的档案袋扔出窗外，后无法找到。刘某因要款未果诉至法院，请求判令借款人东升公司、徐某还本付息。

被告东升公司、徐某共同答辩称：案涉借款事实未实际发生，刘某主张的借条金额均为其他借款（已形成另案诉讼）滚动计算而来的高额利息，因另案诉讼查封东升公司的土地、设备，其于无奈之下被迫签订系列书面文件,请求驳回刘某的诉讼请求。

【裁判要旨】

江苏省南京市中级人民法院经审理认为，在借款人抗辩未实际收到款项的情况下，刘某就该节事实仅作口头陈述，未能提交其他证据加以证实。据其陈述，其在另案借款未还的情况下，又将2170万元出借给东升公司、徐某，案涉金额较大且均以现金方式交付，该行为本身与常理不符。刘某起诉主张业已发生的借款事实存在不能排除的合理怀疑，仅凭《结算协议书》、《保证按时还款承诺书》、《承诺书》及公安机关的询问笔录等主张权利依据不足。该院判决：驳回刘某的诉讼请求。

刘某不服一审判决，向江苏省高级人民法院提起上诉。经二审法院释明，出借人提交款项来源等证据，用以补证其以现金方式交付借款。二审法院认为:

第一，民间借贷合同具有实践性特征，出借人行使债权请求权要求借款人偿还借款本息的，应当对是否已形成借贷合意、借贷内容以及是否已将款项交付给借款人等事实承担举证责任。借条为借贷双方形成借贷合意的凭证，同时具有推定借贷事实已实际发生的初步证据效力，但在借款人提出借贷事实未实际发生的抗辩，且人民法院对借贷事实产生不可排除的合理怀疑时，出借人还应提交其他证据印证借贷事实的实际发生。本案中，122张借条除签字以外的内容均由出借人事先打印提供、大额借款均以现金交付缺少银行转账凭证，且款项交付方式与另案大额借款通过银行转账的交易习惯不符，此外刘某承认借条金额中还存在将利息预先计入本金的情况。因此，仅凭借条或借款人徐某丢弃借条的行为，尚不能认定出借人已将2170万元借款本金实际交付给借款人。同时，刘某在东升公司、徐某未归还另案借款的情形下又继续出借大额款项，行为不合常理，不能排除借条所载本金数额中包含高额利息的可能性。刘某提交的《结算协议书》、《保证按时还款承诺书》虽形式完备，但该两份证据中的结算数额系依据借条数额计算而来，并不能证明借款本金交付的事实。因此，出借人应补充提交证据证明出借款项的来源、其具有支付大额借款的能力等，以印证借贷事实的实际发生。

第二，在出借人在二审中补充提交款项来源等证据的情形下，对于是否存在借贷关系及借款本金的数额，应从在案证据与案件事实之间的关联程度，以及各证据之间的逻辑联系等方面进行综合判断。首先，刘某提交的银行提现凭证能够证明其具有出借大额款项的支付能力。其次，经审查，刘某在另案中提交的证据系两份借款协议，而本案借款均以借条方式形成，应认定两案所涉借款法律关系彼此独立。再次，银行提现凭证不能直接证明刘某向东升公司、徐某交付借款，仅能证明刘某在当日支取现金，对于款项支取后的去向，还应有借款人出具的借条予以印证。此时借条的性质类似于“收条”，如出借人支取款项的时间、金额与借款人出具借条的时间、借条所载金额均能一一对应，则能形成证明借贷双方之间形成债权债务关系的证据链，证明出借人刘某在支取现金后，将该笔款项交付给借款人。

第三，案涉122张借条约定的利率未违反国家有关限制借款利率的规定，应予保护。该约定利率为借期内利率，当事人仅约定借期内利率，未约定逾期利率，出借人以借期内的利率主张逾期还款利息的，依法予以支持。借贷双方约定的借款偿还期限为2010年7月19日，故利息起算的时间应为借款偿还期限届满后的次日，即2010年7月20日。

第四，《承诺书》未记载253万元补偿款的计算依据，对约定补偿款253万元的性质，应认定为借款人东升公司、徐某承诺的对于逾期偿还借款所承担的违约金。本案中，刘某主张的逾期还款利息已经达到中国人民银行同期同类贷款利率的四倍，对于超出的部分，不应予以保护。

二审法院依据查明的事实改判：一、撤销一审民事判决；二、东升公司、徐某在判决生效之日起15日内偿还刘某借款本金871.54万元及相应利息（利息自2010年7月20日起至还清之日止，按照中国人民银行规定的同期同类贷款利率的四倍计付）；三、驳回刘某的其他诉讼请求。

【评析】

目前我国的民间借贷主要存在两种形式，一是无组织的民间借贷，包括私人借贷、企业间借贷、企业和个人之间借贷；二是有组织的借贷，包括合会、标会、地下钱庄、典当行、担保公司、私募基金等。近年来，民间借贷融资总量不断上升、单笔发生额不断扩大，成为民间资本投资的重要渠道，尤其成为中小企业重要的资金来源。随之而来的是大量民间借贷案件涌入各地法院，立法相对滞后导致大量疑难问题还有待进一步澄清和解决，特别是针对该类案件具有的隐蔽型较强的特点，还需要法院进行审查甄别。主要体现为：主体隐蔽，即以自然人出面诉讼，以私人借贷形式掩盖有组织借贷；约定内容隐蔽，隐性利率大量存在、利息预先计入本金，还有以假买卖掩盖真借贷的情形等。由于协议起草多由专业的法律人士参与，书面文件格式齐备、约定内容规范，审查难度较大。

一、案例引出的问题与困惑

就本案的审理而言，至少带来以下问题的思考。

问题一：借条具有何种程度的证据效力。一般而言，借款人与出借人达成借款协议且已以借条等书面方式确认收到款项，即应认定借款事实已实际发生，借款人应对由其本人签名确认的内容负责，按承诺还本付息。依据最高人民法院《关于民事诉讼证据的若干规定》第五条的规定，“在合同纠纷案件中，主张合同关系成立并生效的一方当事人对合同订立和生效的事实承担举证责任;主张合同关系变更、解除、终止、撤销的一方当事人对引起合同关系变动的事实承担举证责任。对合同是否履行发生争议的，由负有履行义务的当事人承担举证责任”。本案中，出借人不仅提交了借条，还提交了结算协议、保证还款承诺书、结算协议书等大量书面证据，为何法院未直接判决借款人按约归还本息？

问题二：在出借人主张出借款项全部是以现金方式交付、不能提交汇款凭证的情形下，是否有必要审查，以及如何审查确认借款交付事实？

问题三：在双方当事人既约定以四倍同期贷款利率计算的逾期还款利息，又约定另外支付补偿款、律师费用、综合管理费等以加大对逾期还款的惩罚力度时，法院应否予以支持？

问题四：在涉及非法集资的情形下，刑民交织的问题应如何解决。2010年，最高人民法院《关于审理非法集资刑事案件具体应用法律若干问题的解释》规定，未经中国人民银行批准，向社会不特定对象吸收资金，出具凭证，承诺在一定期限内还本付息的活动可能构成非法集资。民间借贷案件审理中，如发现符合非法集体资犯罪特征、涉嫌犯罪的，应如何处理？

二、对民间借贷案件借款事实审查的思路与步骤

依据最高人民法院《关于依法妥善审理民间借贷纠纷案件　促进经济发展维护社会稳定的通知》第七条的要求，人民法院在审理民间借贷纠纷案件过程中，要依法全面、客观地审核双方当事人提交的全部证据，从各证据与案件事实的关联程度、各证据之间的联系等方面进行综合审查判断。

（一）在存疑案件中借条仅具有推定性的证据效力

传统民间借贷的主体均为个人且通常彼此熟识，借款习惯为小额现金当场交付，因此“钱据两讫”即告交易完成。在此类案件的审理中，一般依据借款人出具的借条即可认定借款事实已经实际发生。

在借款人一方为企业的民间借贷中，通常涉及大额款项的交付，在此情形下，依据最高人民法院《关于依法妥善审理民间借贷纠纷案件　促进经济发展维护社会稳定的通知》第七条的要求，对主张现金交付的借贷，可根据交付凭证、支付能力、交易习惯、借贷金额的大小、当事人间关系以及当事人陈述的交易细节经过等因素综合判断。由于我国尚未有类似于国外现金交易法的规定，并未强制要求大额款项支付必须以银行走账的方式进行，因此在出借人主张大额现金交付的情形下，审查借款事实是否实际发生存在较大难度。在大量民间借贷案件中还出现制式性借条，借条均由出借人事先统一印制提供给借款人，借款人不能随意更改借条的内容，只在借条上签字确认即可。制式借条的用词造句一般都很严谨，本金、利息的表述均严格依照法律的规定。此外，出借人还与借款人之间定期结算，签订结算协议、还款协议等书面文件，用以佐证借条内容的真实性。因此，一旦出借人以借条为据要求还款，借款人以借条本金包含隐性高息抗辩时，法院很难查证出借本金的实际数额。在此情形下，应初步判断出借人主张的借款事实是否具有不可排除的合理怀疑，在存在合理怀疑的情形下，应要求出借人进一步举证。

以本案为例，至少存在以下引致合理怀疑的事实：

其一，122张借条所载除签字以外的内容均由出借人事先打印提供、大额借款均以现金交付缺少银行转账凭证，且款项交付方式与另案大额借款通过银行转账的交易习惯不符，此外刘某亦承认借条金额中还存在将利息预先计入本金的情况。

其二，出借人在借款人未归还另案大额借款的情形下，继续出借大额款项给同一借款人，其行为不合常理，不能排除借款人所称借条所载本金数额中包含高额利息的可能性。

因此，在存在不可排除的合理怀疑事实时，应认定此时借条仅具有推定性的证据效力。出借人还应提交其他证据印证借款事实的实际发生。

（二）出借人负有补强款项来源、排除合理怀疑的举证责任

借条是双方当事人达成借贷合意的凭证，在对借款事实发生合理怀疑时，出借人应首先举证证明借款交付的事实。本案中，二审法院释明要求出借人补充提交款项来源等证据，以合理解释前述可疑事实。本案中，出借人补充提交的证据，依其证明目的分为两类：

其一，能够证明借款现金交付的证据。包括从银行调取的银行卡提现凭证，以及银行取现标识说明，用以证明出借款项提取的时间、方式。因出借人称其交付大额现金均为独来独往，与借款人均为单独接触，因此并无直接证据证明现金交付事实，前述取款证据均为间接证据。经审查，其中：1、从银行调取的银行卡提现凭证107份，均由提现银行盖章确认。时间、金额与借条内容完全吻合的共有66笔，金额合计839.54万元；时间、金额略有误差的共有11笔，金额合计253.77万元；以上提现凭证金额合计1093.31万元。时间吻合、提现金额少于借条金额的共有7笔，金额合计90.91万元；金额吻合、时间不吻合的共有6笔，金额合计107万元。另有17笔提现凭证，金额合计179.64万元不能与借条对应。2、银行取现标识说明一份，印证款项来源均为提取现金。如《交通银行交易凭条》记载“实付现金”，《招商银行交易明细表》记载“CWD1：本行ATM取款”、“WDCS：柜台取现为柜台提取现金”，《中国农业银行银行卡取款业务回单》记载“现金取款”，《上海浦东发展银行业务回单》记载“现金清讫”，《深圳发展银行客户回单》记载“支取现金”，《中国银行取款凭条》记载“贷701”，《江苏银行对私活期明细历史数据查询单》记载“取款”等。

经核对，借条日期、金额与银行提现日期、金额能够完全对应的共有66笔，金额合计839.54万元。另,银行提现日期与借条日期相符、提现金额大于借条金额的共有3笔，金额合计32万元。前述69笔款项，金额合计871.54万元，应认定为刘某向东升公司、徐某实际交付的借款本金数额。

其二，能够合理解释“前债未还，又借新债”的证据。在出借人与借款人之间存在滚动借款，前债尚未还清且已引发另案诉讼的情形下，出借人又重新借出大额款项，显然有违常理，对此，出借人应作出合理解释，如证明借款人提供可靠的借款担保，对前债与新债借款一并提供担保，出借人有理由相信所有借款均有还款保证。在本案中，出借人提交的该部分证据包括：1、东升公司工商变更登记申请资料、刘某与东升公司股东签订的《股权转让协议》，证明东升公司的两名股东已将所持东升公司的全部股权转让给刘某作为借款担保，要求刘某继续提供借款。2、徐某与刘某的部分短信往来记录，证明徐某向刘某提出借款要求，刘某借款给徐某，在2010年7月19日徐某毁灭借条原件之前，双方关系较为友好，且未因另案诉讼中断借款。

在出借人完成证据补强义务的情形下，依照最高人民法院司法解释的精神，对于是否存在借贷关系及借款本金的数额，应从在案证据与案件事实之间的关联程度，以及各证据之间的逻辑联系等方面进行综合判断。首先，银行提现凭证能够证明刘某具有出借大额款项的支付能力。其次，银行提现凭证能够证明刘某在当日支取现金，对于款项支取后的去向，有借款人出具的借条予以印证，此时借条的性质类似于“收条”，在出借人支取款项的时间、金额与借款人出具借条的时间、借条所载金额均能一一对应的情形下，已形成证明借贷双方之间形成债权债务关系的证据链，证明出借人刘某在支取现金后，将该笔款项交付给借款人东升公司、徐某。因此，对于刘某提交的银行提现凭证中能与借条在时间、金额上吻合的部分，应予确认。相反，对于刘某提交的其他银行提现凭证，因时间、金额不能与借条对应，未能形成证据链证明支取现金的用途为案涉借款，故对于该部分银行提现凭证与本案的关联性，应不予确认。

需要提及的是，这种认定方法仍然可能存在一定风险，即在制式借条均由出借人打印提供的情形下，仍不能绝对性地排除出借人因其他用途支取现金，但依照支取现金记录编制借条，要求借款人签字确认的情形。尤其是在一些民间借贷案件中，参加诉讼的出借人虽为自然人身份，但在其背后隐藏有组织的借贷团体，因此对每个流程的衔接都安排得十分严谨。但是，考虑到民事案件的审查力度有限，以及现金款项来源证据系对既有借条等书面文件表征的借贷事实进行辅助性、补强性地证明，因此在借款人已向出借人出具一系列书面文件明确认可已收到出借人借款、并作出自愿按约定内容还本付息的意思表示，且出借人已提供补强证据对现金交付事实予以证明的情形下，应认定出借人的举证已达到民事案件认定事实的高度盖然性标准。如借款人仍坚持绝对否定性的抗辩主张，提出借款事实并未实际发生的，则应对其在借条上确认借条全部内容的行为做出合理解释，换言之，此时的举证责任已转移至借款人，如借款人不能提交充分的反驳证据，则应负担相应不利的法律后果。

（三）注意甄别以违约金等方式存在的隐性利率

对于利息问题，首先，应审查约定利息是否违反国家有关限制借款利率的规定。依照《最高人民法院关于人民法院审理借贷案件的若干意见》第6条的规定，民间借贷的利率最高不得超过银行同类贷款利率的四倍（包括利率本数），超出此限度的，超出部分的利息不予保护。其次，应审查约定利息是期内利息还是期外利息，最高人民法院《关于依法妥善审理民间借贷纠纷案件　促进经济发展维护社会稳定的通知》第六条规定，当事人仅约定借期内利率，未约定逾期利率，出借人以借期内的利率主张逾期还款利息的，依法予以支持。由此可见，如当事人未约定期外利息，可参照期内利息标准计算。

需要引起注意的是，在民间借贷案件中，当事人还往往通过律师费、服务费、违约金等形式掩盖超出法律规定限度的高额利息。对于该部分费用应否予以支持，目前各地法院的观点尚不一致，有的法院认为该部分费用只要与利息累计超出四倍，则对超出部分一律不应予以支持，有的法院认为应当区分该费用是否为必要费用，如出借人主张的律师费即为必要支出费用，应予支持。本案中约定的补偿款的性质实为逾期付款违约金，考虑到逾期付款违约金的性质与利息相同，为防止出借人规避法律，以违约金的方式获取高息，对于出借人与借款人在民间借贷合同中既约定利息又约定逾期付款违约金的情形，应认定最终收取的利息和违约金的总额不应超过中国人民银行同期同类贷款利率的四倍。

三、民间借贷案件审理规则的初步构建与法理分析

（一）厘清民间借贷的定义

民间借贷是指自然人之间、自然人与从事非金融业务的法人、其他组织之间借贷人民币、港币、澳元、台币、外币及国库券等有价证券的行为。 该定义的法律渊源包括两个方面，一方面来源于最高人民法院《关于人民法院审理借贷案件的若干意见》中的规定，即“一、公民之间的借货纠纷，公民与法人之间的借贷纠纷以及公民与其他组织之间的借贷纠纷，应作为借贷案件受理。 二、因借贷外币、台币和国库券等有价证券发生纠纷诉讼到法院的，应按借贷案件受理。”另一方面来源于最高人民法院《关于如何确认公民与企业之间借贷行为效力问题的批复》中规定的“公民与非金融企业之间的借贷属于民间借贷”的内容。

前述定义限定民间借贷主体中的一方必须是自然人，需要注意的是两个问题，一是排除金融机构作为民间借贷的主体。自中国人民银行《关于调整金融机构存、贷款利率的通知（银发[2004]251号）》出台后，金融机构(城乡信用社除外)贷款利率不再设定上限。商业银行贷款和政策性银行按商业化管理的贷款，其利率不再实行上限管理。此后，央行于今年取消贷款利率的下限，商业银行的贷款利率空间已充分放开，因此对金融机构的放出的贷款不涉及对借贷利率是否合法进行审查，不能适用司法解释关于民间借贷利率上限的规定。二是企业作为借贷主体时，处理方式具有特殊性，法院对企业借贷的态度始终没有改变。《贷款通则》第74条规定，“企业之间擅自办理借贷或者变相借贷的，由中国人民银行对出借方已取得或者约定取得的利息予以收缴，并对借入方处以相当于银行贷款利息的罚款”。依据最高人民法院《关于对企业借贷合同借款方逾期不归还借款的应如何处理的批复》的规定，企业借贷合同因违反有关金融法规，属无效合同。法院援用该司法解释判决非金融机构参与企业间借贷无效，但在实务中对企业之间利用自有资金进行借贷的案件的处理原则是：一般不仅判决借款方偿还借款本金，而且对约定的利息既不进行追缴，也不处罚。

（二）民间借贷的法律性质与举证责任分配

民间借贷合同具有实践性特征，款项交付系要求还款的必要前提，因此，在出借人除负有证明双方之间形成借款合意的责任之外，仍需证明款项已经实际交付。

1、如前所述，出借人基于民间借贷法律关系要求归还借款的，首先应当举证证明双方当事人已达成借贷合意的事实，如提交借款合同、借据等证据，以及款项已实际交付的证据，如汇款凭证、收条。在简单案件中，借条可同时承担证明前述两项要件事实的作用。如不存在疑点事实，即可认定出借人完成了自己的举证责任。借款人主张已经全部偿还或部分偿还借款本息的，应对还款事实承担举证责任。

2、出借人未举证证明其已经实际交付款项，借款人抗辩借款未实际发生，且出借人主张的借款事实存在不可排除的合理怀疑的，类似情形如大额款项（或双方之间虽以小额款项往来但交付频繁、累计数额巨大）均以现金交付且无其他证据印证；前债未还又借新款，且未要求借款人提供可靠担保的，人民法院应要求出借人补强证据，以排除合理怀疑。如出借人不能证明款项交付事实的，应驳回其诉讼请求。

（三）厘清违约金、费用、利息三者的关系

利息是本金在借贷合同履行过程中的孳息收益，逾期利息应该认为是在迟延付款这段时间本金所得产生的孳息收益。鉴于借贷合同违约造成的直接和最主要的损失就是借款人无法利用本金谋取收益，同时又考虑到民间借贷实践中当事人往往通过巧立名目的方式谋求高利贷来规避法律的事实，最高人民法院1999年2月12日的《关于逾期付款违约金应当按照何种标准计算问题的批复》和2000年11月15日关于修改《最高人民法院关于逾期付款违约金应当按照何种标准计算问题的批复》的批复明确可参考逾期利息的标准来确定逾期付款违约金的计算标准。因此，对于当事人既约定利息，又约定违约金的，借款期限内的利息以不超过银行同期贷款四倍为准，借款逾期后利息和违约金两项合计不超过人民银行同期贷款利率的四倍。

此外，依据江苏省高级人民法院审理民间借贷案件会议纪要的精神，在民间借贷纠纷案件中，当事人双方对为实现债权支出的律师费用有约定的，按照约定处理；但一方当事人请求扣除超出合理部分的律师费用的，人民法院应当予以支持。

四、结语

二审判决的价值在于确立了以下审理尺度：民间借贷合同具有实践性特征，出借人行使债权请求权要求借款人偿还借款本息的，应当对是否已形成借贷合意、借贷内容以及是否已将款项交付给借款人等事实承担举证责任。借条为借贷双方形成借贷合意的凭证，同时具有推定借贷事实已实际发生的初步证据效力，但在借款人提出借贷事实未实际发生的抗辩，且人民法院对借贷事实产生不可排除的合理怀疑时，出借人还应提交其他证据印证借贷事实的实际发生。

随着民间融资供需矛盾的不断加大，民间借贷案件将不可避免地呈现借贷主体多元化、借贷形式多样化、案件事实复杂化等发展态势，相对于现行法律对民间借贷的规制较为滞后的情形，民间借贷案件的审判难题还将层出不穷，期待司法作出更多的回应。

原载：《判解研究》2013年第1辑。（编辑中已删去注释）

【Summary of the Case】

The plaintiff Liu filed a lawsuit alleging that he borrowed 21.7 million yuan from Dongsheng Company and Xu (the legal representative of Dongsheng Company). There were 122 promissory notes signed and confirmed by the borrower, all of which stated: "Today, I borrowed cash from Liu × Yuan; When the agreed loan term expires, interest shall be paid on the day of repayment of the principal, calculated at four times the bank's commercial operating loan interest rate (or the bank's loan interest rate for the same period). The borrower shall regularly issue a "Commitment Letter to Ensure Timely Repayment" to Liu during the loan period; Afterwards, both parties signed a Settlement Agreement, agreeing that the borrower should repay the loan before July 19th of the same year. Dongsheng Company and Xu issued a separate commitment letter, promising to pay an additional 2.53 million yuan in compensation for the investment losses caused to Liu due to the occupation of funds. On July 19, 2010, when the agreed repayment deadline expired, Liu reported to the public security organs that he had withdrawn funds from the borrower's company. While copying the original loan slip, Xu threw the archive bag that had sealed the original loan slip out of the window and was unable to find it. Liu filed a lawsuit to the court due to his unsuccessful request for payment, requesting the borrower Dongsheng Company and Xu to repay the principal and interest.

Defendants Dongsheng Company and Xu jointly defended that the fact of the loan involved in the case did not actually occur, and Liu claimed that the loan amount was the high interest calculated by rolling other loans (which had formed a separate lawsuit). Due to the closure of Dongsheng Company's land and equipment in the separate lawsuit, he was forced to sign a series of written documents and request the rejection of Liu's lawsuit request.

【Summary of Judgment】

After trial, the Intermediate People's Court of Nanjing City, Jiangsu Province found that Liu only made an oral statement on this fact and did not submit any other evidence to prove it in the borrower's defense of not actually receiving the payment. According to his statement, he lent 21.7 million yuan to Dongsheng Company and Xu even though the loan was not repaid in another case. The amount involved in the case was relatively large and all were delivered in cash, which is not consistent with common sense. Liu sued Zhang Ye, claiming that there were reasonable suspicions that could not be ruled out regarding the fact that the loan had already occurred. The basis for claiming rights was insufficient solely based on the Settlement Agreement, Commitment Letter to Ensure Timely Repayment, Commitment Letter, and inquiry records from public security organs. The court ruled that Liu's lawsuit request was rejected.

Liu appealed to the Jiangsu Provincial Higher People's Court against the first instance judgment. According to the second instance court's interpretation, the lender submitted evidence such as the source of the funds to supplement the evidence that they delivered the loan in cash. The court of second instance held that:

Firstly, private lending contracts have practical characteristics. If the lender exercises the right to claim creditor's rights and demands the borrower to repay the principal and interest of the loan, they should bear the burden of proof for whether a loan agreement has been formed, the loan content, and whether the funds have been delivered to the borrower. The promissory note is a voucher for the formation of a loan agreement between the borrower and the borrower, and has the preliminary evidence effect of presuming that the loan fact has actually occurred. However, when the borrower raises a defense that the loan fact has not actually occurred and the people's court has reasonable doubts about the loan fact that cannot be ruled out, the lender should also submit other evidence to confirm the actual occurrence of the loan fact. In this case, all 122 promissory notes, except for their signatures, were printed and provided by the lender in advance. Large loans were all delivered in cash without bank transfer vouchers, and the payment method was inconsistent with the transaction habit of transferring large loans through banks in another case. In addition, Liu admitted that there was also a situation where interest was pre recorded as principal in the amount of the promissory notes. Therefore, relying solely on the promissory note or the borrower's behavior of discarding the promissory note, it cannot be determined that the lender has actually delivered the loan principal of 21.7 million yuan to the borrower. At the same time, Liu continued to lend a large amount of money while Dongsheng Company and Xu did not repay the loan in another case, which is unreasonable and cannot rule out the possibility of high interest included in the principal amount stated in the promissory note. Although the "Settlement Agreement" and "Commitment Letter to Ensure Timely Repayment" submitted by Liu are complete in form, the settlement amount in these two pieces of evidence is calculated based on the amount of the loan receipt, and cannot prove the fact that the loan principal has been delivered. Therefore, the lender should provide additional evidence to prove the source of the loan funds and their ability to pay large loans, in order to confirm the actual occurrence of the loan.

Secondly, in the case where the lender submits additional evidence such as the source of funds in the second instance, a comprehensive judgment should be made on whether there is a lending relationship and the amount of loan principal from the degree of correlation between the recorded evidence and the facts of the case, as well as the logical connection between the various evidence. Firstly, the bank withdrawal voucher submitted by Liu can prove his ability to lend large amounts of money. Secondly, after examination, it was found that the evidence submitted by Liu in another case was two loan agreements, and the loans in this case were both formed through promissory notes. Therefore, it should be determined that the legal relationships between the loans involved in the two cases are independent of each other. Once again, the bank withdrawal voucher cannot directly prove that Liu delivered the loan to Dongsheng Company and Xu, but can only prove that Liu withdrew cash on the same day. For the whereabouts of the funds after withdrawal, there should also be a debit note issued by the borrower to confirm it. At this point, the nature of a promissory note is similar to a "receipt". If the time and amount of the lender's withdrawal match the time and amount of the borrower's issuance of the promissory note, and the amount stated in the promissory note, it can form a chain of evidence to prove the formation of a debt relationship between the borrower and the borrower, proving that the lender Liu delivered the payment to the borrower after withdrawing cash.

Thirdly, the interest rate agreed upon in the 122 loan notes involved in the case did not violate the relevant national regulations on limiting loan interest rates and should be protected. The agreed interest rate is the interest rate during the borrowing period, and the parties only agree on the interest rate during the borrowing period. If the lender claims overdue repayment interest at the interest rate during the borrowing period, it shall be supported in accordance with the law. The loan repayment period agreed upon by both parties is July 19, 2010, so the interest calculation should start on the day after the loan repayment period expires, which is July 20, 2010.

Fourthly, the "Commitment Letter" does not record the calculation basis for the compensation of 2.53 million yuan. For the nature of the agreed compensation of 2.53 million yuan, it should be recognized as the breach of contract penalty promised by the borrower Dongsheng Company and Xu for overdue repayment of the loan. In this case, Liu's claim for overdue repayment interest has reached four times the interest rate of similar loans of the People's Bank of China during the same period, and the excess should not be protected.

The second instance court revised the judgment based on the identified facts: firstly, revoke the first instance civil judgment; 2、 Dongsheng Company and Xu shall repay Liu's loan principal of 8.7154 million yuan and corresponding interest within 15 days from the effective date of the judgment (the interest shall be calculated and paid at four times the interest rate of similar loans in the same period as stipulated by the People's Bank of China from July 20, 2010 to the date of repayment); 3、 Reject Liu's other litigation requests.

【Evaluation and Analysis】

At present, there are two main forms of private lending in China. One is unorganized private lending, including private lending, inter enterprise lending, and lending between enterprises and individuals; The second is organized lending, including cooperatives, standard clubs, underground banks, pawnshops, guarantee companies, private equity funds, etc. In recent years, the total amount of private lending and financing has been continuously increasing, and the amount of individual transactions has been continuously expanding, becoming an important channel for private capital investment, especially an important source of funds for small and medium-sized enterprises. Subsequently, a large number of private lending cases have flooded into courts in various regions, and the relatively lagging legislation has led to a large number of difficult issues that need further clarification and resolution, especially in response to the strong concealment characteristics of such cases, which require court review and screening. The main manifestation is: the subject is concealed, that is, the litigation is brought by natural persons, and organized lending is covered up in the form of private lending; The content of the agreement is hidden, there are a large number of implicit interest rates, interest is pre recorded in the principal, and there are situations where fake buying and selling are used to cover up real borrowing and lending. Due to the involvement of professional legal personnel in drafting agreements, the format of written documents is complete, and the agreed content is standardized, making it difficult to review.

1、 Questions and confusion arising from the case

In terms of the trial of this case, at least the following considerations are brought.

Question 1: To what extent does a promissory note have evidential validity. Generally speaking, if the borrower and the lender reach a loan agreement and have confirmed receipt of the payment in writing, such as a promissory note, it shall be deemed that the loan has actually occurred. The borrower shall be responsible for the content confirmed by their signature, and shall repay the principal and interest as promised. According to Article 5 of the Several Provisions on Evidence in Civil Litigation of the Supreme People's Court, In contract dispute cases, the party claiming the establishment and effectiveness of the contract relationship bears the burden of proof for the fact that the contract is formed and effective; the party claiming the change, termination, or revocation of the contract relationship bears the burden of proof for the fact that caused the change in the contract relationship. If there is a dispute over whether the contract is fulfilled, the party responsible for fulfilling the obligation shall bear the burden of proof. In this case, the lender not only submitted a promissory note, but also submitted a large amount of written evidence such as a settlement agreement, guarantee repayment commitment letter, and settlement agreement. Why did the court not directly judge the borrower to repay the principal and interest as agreed?

Question 2: Is it necessary to review and confirm the fact of loan delivery when the lender claims that all loan items are delivered in cash and cannot submit remittance vouchers?

Question 3: Should the court support both parties in agreeing to pay compensation, legal fees, comprehensive management fees, and other additional penalties for overdue repayment calculated at four times the same period loan interest rate?

Question 4: How to solve the problem of criminal and civil interweaving in cases involving illegal fundraising. In 2010, the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fundraising stipulated that activities such as absorbing funds from unspecified objects in society, issuing vouchers, and promising to repay principal and interest within a certain period of time without the approval of the People's Bank of China can constitute illegal fundraising. In the trial of private lending cases, if it is found that it conforms to the characteristics of illegal collective capital crimes and is suspected of committing crimes, how should it be handled?

2、 Thoughts and steps for reviewing the borrowing facts in private lending cases

According to Article 7 of the Notice of the Supreme People's Court on Promoting Economic Development and Maintaining Social Stability through the Proper Trial of Private Loan Dispute Cases in accordance with the Law, the people's court shall comprehensively and objectively review all the evidence submitted by both parties in the process of trying private loan dispute cases in accordance with the law, and conduct a comprehensive review and judgment from the degree of correlation between each evidence and the facts of the case, as well as the connection between each evidence.

（1） In suspected cases, promissory notes only have constructive evidence validity

The subjects of traditional folk lending are individuals who are usually familiar with each other, and the borrowing habit is to deliver small amounts of cash on the spot. Therefore, the transaction is completed when the money is received. In the trial of such cases, it is generally determined that the fact of borrowing has actually occurred based on the loan receipt issued by the borrower.

In private lending where the borrower is an enterprise, it usually involves the delivery of large amounts of funds. In this case, in accordance with the requirements of Article 7 of the Supreme People's Court's "Notice on the Proper Trial of Private Lending Disputes in accordance with the Law to Promote Economic Development and Maintain Social Stability," for loans that claim cash delivery, the delivery voucher, payment ability, transaction habits, and the size of the loan amount can be determined based on A comprehensive judgment is made based on factors such as the relationship between the parties and the transaction details stated by the parties. Due to the lack of provisions similar to foreign cash transaction laws in China, which do not mandate the payment of large amounts to be made through bank transfer, it is difficult to examine whether the loan fact actually occurred when the lender advocates for the delivery of large amounts of cash. In a large number of private lending cases, there are also standardized promissory notes, which are uniformly printed and provided by the lender to the borrower in advance. The borrower cannot change the content of the promissory note at will, only sign and confirm on the promissory note. The wording and sentence construction of standard IOUs are generally very rigorous, and the expressions of principal and interest are strictly in accordance with legal regulations. In addition, the lender also regularly settles accounts with the borrower, signing settlement agreements, repayment agreements, and other written documents to prove the authenticity of the loan terms. Therefore, once the lender requests repayment based on the IOU, and the borrower defends that the IOU principal includes implicit high interest, it is difficult for the court to verify the actual amount of the borrowed principal. In this case, it should be preliminarily determined whether the loan facts claimed by the lender have reasonable doubts that cannot be ruled out. In the case of reasonable doubts, the lender should be required to provide further evidence.

Taking this case as an example, there are at least the following facts that raise reasonable suspicion:

Firstly, all the contents of the 122 promissory notes, except for the signature, were printed and provided by the lender in advance. Large amounts of loans were delivered in cash without bank transfer vouchers, and the payment method was not consistent with the transaction habit of transferring large amounts of loans through banks. In addition, Liu also admitted that there was a situation where interest was pre recorded as principal in the amount of the promissory notes.

Secondly, if the lender continues to lend a large amount of money to the same borrower without the borrower repaying the loan in another case, its behavior is unreasonable and cannot rule out the possibility that the borrower claims that the principal amount contained in the promissory note contains high interest.

Therefore, when there are reasonable doubts that cannot be ruled out, it should be determined that the promissory note has only constructive evidence effect at this time. The lender should also submit other evidence to confirm the actual occurrence of the loan.

（2） The lender has the burden of proof to reinforce the source of the funds and eliminate reasonable suspicion

A promissory note is a voucher for both parties to reach a loan agreement. When there is reasonable doubt about the fact of the loan, the lender should first provide evidence to prove the fact of the loan delivery. In this case, the second instance court clarified that the lender was required to provide additional evidence such as the source of the funds to reasonably explain the aforementioned suspicious facts. In this case, the evidence submitted by the lender for supplementary purposes can be divided into two categories:

Firstly, evidence that can prove the cash delivery of the loan. This includes the bank card withdrawal voucher retrieved from the bank, as well as a description of the bank withdrawal identification, to prove the time and method of extracting the loan item. Due to the lender claiming that they delivered large amounts of cash on their own and had separate contact with the borrower, there is no direct evidence to prove the fact of cash delivery. The aforementioned withdrawal evidence is indirect evidence. After review, it was found that: 1. 107 bank card withdrawal vouchers were retrieved from the bank, all of which were stamped and confirmed by the withdrawal bank. There are a total of 66 transactions with a total amount of 8.3954 million yuan that completely match the time and amount of the debit note; There are a total of 11 cases with slight errors in time and amount, totaling 2.5377 million yuan; The total amount of the withdrawal vouchers mentioned above is 10.9331 million yuan. There are a total of 7 cases where the time matches and the withdrawal amount is less than the debit amount, with a total amount of 909100 yuan; There are a total of 6 transactions with matching amounts and mismatched dates, totaling 1.07 million yuan. There are also 17 withdrawal vouchers, with a total amount of 1.7964 million yuan that cannot correspond to the debit note. 2. A bank withdrawal identification statement confirming that the source of the funds is all cash withdrawals. For example, the "Bank of Communications Transaction Receipt" records "paid cash", the "China Merchants Bank Transaction Details" records "CWD1: withdrawal from our bank's ATM", "WDCS: withdrawal from the counter is withdrawal of cash", the "Agricultural Bank of China Bank Card Withdrawal Business Receipt" records "cash withdrawal", the "Shanghai Pudong Development Bank Business Receipt" records "cash cleared", and the "Shenzhen Development Bank Customer Receipt" records "cash withdrawal", The "Bank of China Withdrawal Receipt" records "Loan 701", and the "Jiangsu Bank Private Current Details Historical Data Query Form" records "withdrawal" and so on.

After verification, there are a total of 66 transactions with a total amount of 8.3954 million yuan that fully correspond to the date and amount of the debit note and the bank withdrawal date and amount. In addition, there are three cases where the withdrawal date of the bank matches the date of the debit note, and the withdrawal amount is greater than the amount of the debit note, totaling 320000 yuan. The aforementioned 69 payments, totaling 8.7154 million yuan, should be recognized as the actual amount of loan principal paid by Liu to Dongsheng Company and Xu.

Secondly, it can provide a reasonable explanation for the evidence of borrowing new debt while the previous debt has not been repaid. In the case of a rolling loan between the lender and the borrower, where the previous debt has not been fully repaid and a separate lawsuit has been initiated, it is obviously against common sense for the lender to lend a large amount of money again. Therefore, the lender should provide a reasonable explanation, such as proving that the borrower provides reliable loan guarantees and providing guarantees for both the previous debt and the new debt loans. The lender has reason to believe that all loans have repayment guarantees. In this case, the evidence submitted by the lender includes: 1. Dongsheng Company's industrial and commercial change registration application materials, and the "Equity Transfer Agreement" signed between Liu and Dongsheng Company's shareholders, proving that the two shareholders of Dongsheng Company have transferred all their equity in Dongsheng Company to Liu as a loan guarantee, requesting Liu to continue providing the loan. 2. The partial SMS communication records between Xu and Liu prove that Xu requested a loan from Liu, and Liu lent it to Xu. Before Xu destroyed the original loan slip on July 19, 2010, the relationship between the two parties was relatively friendly and the loan was not interrupted due to a separate lawsuit.

In the case where the lender fulfills the obligation of evidence reinforcement, in accordance with the spirit of the judicial interpretation of the Supreme People's Court, a comprehensive judgment should be made on whether there is a lending relationship and the amount of loan principal from the degree of correlation between the recorded evidence and the facts of the case, as well as the logical connection between each evidence. Firstly, the bank withdrawal voucher can prove that Liu has the payment ability to lend large amounts of money. Secondly, the bank withdrawal voucher can prove that Liu withdrew cash on the same day. For the whereabouts of the funds after withdrawal, there is a debit note issued by the borrower to confirm it. At this time, the nature of the debit note is similar to the "receipt". In the case where the time and amount of the lender withdrawing the funds can correspond one by one with the time and amount of the borrower issuing the debit note, and the amount stated in the debit note, a chain of evidence has been formed to prove the formation of a debt relationship between the borrower and the borrower, Proof that the lender Liu delivered the amount to the borrower Dongsheng Company and Xu after withdrawing cash. Therefore, the portion of the bank withdrawal voucher submitted by Liu that matches the time and amount of the debit note should be confirmed. On the contrary, for the other bank withdrawal vouchers submitted by Liu, as the time and amount cannot correspond to the debit note, there is no evidence chain to prove that the purpose of withdrawing cash is the loan involved in the case. Therefore, the correlation between this part of the bank withdrawal vouchers and this case should not be confirmed.

It should be mentioned that this identification method may still have certain risks, that is, in the case where the standard debit note is printed and provided by the lender, it cannot be absolutely ruled out that the lender withdraws cash for other purposes, but the borrower is required to sign and confirm the preparation of the debit note according to the cash withdrawal record. Especially in some private lending cases, although the lenders participating in the litigation are natural persons, there are organized lending groups hidden behind them, so the connection of each process is arranged very rigorously. However, considering the limited scrutiny of civil cases and the fact that the evidence of the source of cash payments is supplementary and reinforcing evidence of the borrowing facts represented by existing written documents such as promissory notes, the borrower has issued a series of written documents to the lender clearly acknowledging that the borrower has received the loan and made a voluntary declaration of willingness to repay the principal and interest according to the agreed terms, In the case where the lender has provided supplementary evidence to prove the fact of cash delivery, it should be deemed that the lender's evidence has met the high probability standard for determining the facts in civil cases. If the borrower still insists on an absolutely negative defense claim and proposes that the fact of the loan did not actually occur, a reasonable explanation should be given for their confirmation of the entire content of the loan on the loan slip. In other words, the burden of proof has shifted to the borrower. If the borrower cannot submit sufficient rebuttal evidence, they should bear the corresponding adverse legal consequences.

（3） Pay attention to identifying hidden interest rates that exist in the form of liquidated damages

For the issue of interest, first of all, it is necessary to examine whether the agreed interest violates the relevant national regulations on limiting loan interest rates. According to Article 6 of the "Opinions of the Supreme People's Court on the Trial of Loan Cases by the People's Court", the maximum interest rate for private lending shall not exceed four times the interest rate of similar loans by banks (including the principal interest rate). If the limit is exceeded, the excess interest shall not be protected. Secondly, it is necessary to examine whether the agreed interest is interest within the period or interest outside the period. Article 6 of the Notice of the Supreme People's Court on Properly Handling Private Loan Dispute Cases in accordance with the Law to Promote Economic Development and Maintain Social Stability stipulates that the parties only agree on the interest rate during the borrowing period, and do not agree on the overdue interest rate. If the lender claims overdue repayment interest at the interest rate during the borrowing period, it shall be supported in accordance with the law. From this, it can be seen that if the parties have not agreed on regular interest payments, they can refer to the standard for interest payments during the period.

It should be noted that in private lending cases, parties often cover up high interest beyond the legal limit through forms such as lawyer fees, service fees, and liquidated damages. The views of courts in various regions are currently inconsistent on whether to support this portion of fees. Some courts believe that as long as the cumulative amount of fees exceeds four times the interest, the excess should not be supported. Some courts believe that it is necessary to distinguish whether the fees are necessary expenses. If the lawyer's fees claimed by the lender are necessary expenses, they should be supported. The nature of the compensation agreed upon in this case is actually the liquidated damages for overdue payment. Considering that the nature of the liquidated damages for overdue payment is the same as the interest, in order to prevent the lender from evading the law and obtaining high interest rates through liquidated damages, in the case of both interest and liquidated damages for overdue payment agreed upon between the lender and the borrower in the private lending contract, It should be recognized that the total amount of interest and liquidated damages ultimately collected should not exceed four times the interest rate of similar loans of the People's Bank of China during the same period.

3、 Preliminary Construction and Legal Analysis of Trial Rules for Private Loan Cases

（1） Clarify the Definition of Private Lending

Private lending refers to the borrowing and lending of securities such as Renminbi, Hong Kong dollars, Australian dollars, Taiwan dollars, foreign currencies, and Treasury bills between natural persons, legal persons engaged in non-financial business, and other organizations. The legal sources of this definition include two aspects. On the one hand, it comes from the provisions of the Supreme People's Court's Several Opinions on the Trial of Loan Cases by the People's Court, 1. Loan disputes between citizens, loan disputes between citizens and legal persons, and loan disputes between citizens and other organizations should be accepted as loan cases The content of "lending between citizens and non-financial enterprises belongs to private lending" as stipulated in.

The above definition limits that one party in the private lending entity must be a natural person, and two issues need to be noted. One is to exclude financial institutions as the subject of private lending. Since the issuance of the Notice on Adjusting the Deposit and Loan Interest Rates of Financial Institutions (Yin Fa [2004] No. 251) by the People's Bank of China, the loan interest rates of financial institutions (excluding urban and rural credit cooperatives) have no longer been capped. Commercial bank loans and policy banks' loans managed according to commercialization will no longer have upper limit management on their interest rates. Afterwards, the central bank lifted the lower limit of loan interest rates this year, and the loan interest rate space of commercial banks has been fully opened up. Therefore, loans issued by financial institutions do not involve a review of the legality of loan interest rates, and the provisions of judicial interpretations on the upper limit of private lending interest rates cannot be applied. Secondly, when enterprises are the main borrowers, their handling methods are unique, and the court's attitude towards enterprise lending has never changed. Article 74 of the General Provisions on Loans stipulates that "if enterprises engage in unauthorized or disguised lending between themselves, the People's Bank of China shall collect the interest already obtained or agreed upon by the lender, and impose a fine equivalent to the bank loan interest on the borrower. According to the provisions of the Supreme People's Court's Reply on How to Deal with Borrowers of Enterprise Loan Contracts Who Do Not Repay Loans on Time, enterprise loan contracts are invalid due to their violation of relevant financial regulations. The court used this judicial interpretation to render the participation of non-financial institutions in inter enterprise lending invalid. However, in practice, the principle for handling cases where enterprises use their own funds for lending is: generally, not only does the borrower be judged to repay the loan principal, but the agreed interest is neither pursued nor punished.

（2） The Legal Nature of Private Lending and the Allocation of Burden of Proof

Private lending contracts have practical characteristics, and payment delivery is a necessary prerequisite for repayment. Therefore, in addition to the responsibility of proving the formation of a loan agreement between the two parties, the lender still needs to prove that the payment has been actually delivered.

1. As mentioned earlier, if the lender requests repayment of the loan based on the legal relationship of private lending, the first step is to provide evidence to prove that both parties have reached a loan agreement, such as submitting evidence such as loan contracts and receipts, as well as evidence that the funds have actually been delivered, such as remittance vouchers and receipts. In simple cases, promissory notes can simultaneously serve as proof of the aforementioned two essential facts. If there are no doubtful facts, it can be determined that the lender has fulfilled its burden of proof. If the borrower claims to have fully or partially repaid the principal and interest of the loan, they shall bear the burden of proof of the repayment fact.

2. If the lender fails to provide evidence to prove that the payment has actually been made, the borrower defends that the loan did not actually occur, and there are reasonable doubts that cannot be ruled out regarding the fact of the loan claimed by the lender, similar situations such as large amounts of money (or frequent and significant cumulative payments between the two parties although small amounts of money are exchanged) are all delivered in cash without any other evidence to prove; If the previous debt has not been repaid and a new loan has been borrowed, and the borrower is not required to provide reliable guarantees, the people's court shall require the lender to provide additional evidence to rule out reasonable suspicion. If the lender cannot prove the fact of payment, their litigation request shall be rejected.

（3） Clarify the relationship between liquidated damages, fees, and interest

Interest is the fruits and benefits of the principal during the performance of the loan contract, and overdue interest should be considered as the fruits and benefits of the principal during the period of delayed payment. Considering that the direct and main loss caused by the breach of a loan contract is that the borrower is unable to use the principal to seek profits, and also considering the fact that in private lending practice, parties often seek high interest loans through clever naming to evade the law, The approval of the Supreme People's Court on February 12, 1999 on the calculation standard of liquidated damages for overdue payments and on November 15, 2000 on the revision of the approval of the Supreme People's Court on the calculation standard of liquidated damages for overdue payments can refer to the standard of overdue interest to determine the calculation standard of liquidated damages for overdue payments. Therefore, if both parties agree on interest and liquidated damages, the interest during the loan term shall not exceed four times the bank's loan interest rate for the same period. The total amount of interest and liquidated damages after the loan is overdue shall not exceed four times the People's Bank of China's loan interest rate for the same period.

In addition, in accordance with the spirit of the minutes of the meeting of the Jiangsu Provincial High People's Court to hear private lending cases, in private lending dispute cases, if both parties have an agreement on the lawyer's fees to achieve creditor's rights, they shall handle it according to the agreement; But if one party requests to deduct the lawyer's fees beyond a reasonable amount, the people's court shall support it.

4、 Conclusion

The value of the second instance judgment lies in the establishment of the following trial criteria: private lending contracts have practical characteristics, and if the lender exercises the right to claim creditor's rights to demand the borrower to repay the principal and interest of the loan, they should bear the burden of proof for whether a loan agreement has been formed, the loan content, and whether the payment has been delivered to the borrower. The promissory note is a voucher for the formation of a loan agreement between the borrower and the borrower, and has the preliminary evidence effect of presuming that the loan fact has actually occurred. However, when the borrower raises a defense that the loan fact has not actually occurred and the people's court has reasonable doubts about the loan fact that cannot be ruled out, the lender should also submit other evidence to confirm the actual occurrence of the loan fact.

With the increasing contradiction between supply and demand in private financing, private lending cases will inevitably present a development trend of diversified lending subjects, diverse lending forms, and complex case facts. Compared to the current legal regulation of private lending, the trial difficulties in private lending cases will continue to emerge one after another. We look forward to more judicial responses.

Original publication: "Interpretation Research", Volume 1, 2013. (Annotations have been removed during editing)