A branch of Bank of China Co., Ltd. v. Yi et al., a credit card dispute case
-- When criminal restitution cannot make up for losses, the victim has the right to separately initiate a civil lawsuit against the party who has not borne the responsibility for criminal restitution
keyword
- civil
- letter of credit
- Civil and criminal intersections
- Criminal restitution
- Fill the loss
Basic facts of the case
A branch of Bank of China Co., Ltd. (hereinafter referred to as a branch of Bank of China) alleged: in February 2014, Yi Moumou and a sub-branch of a branch of Bank of China signed a "Credit Card Exclusive Installment Contract", agreeing to grant Yi a quota of 1.49 million yuan, divided into 36 installments, with an installment handling fee rate of 10.5%. In June 2019, Wang Moumou A issued a Letter of Guarantee for Repayment Commitment to the Communist Youth League Road Branch, promising to repay the principal and interest of the loan and related expenses together with Yi Moumou and Wang Moumou B as a joint debtor. The defendants failed to repay the loan within the time limit, which constituted a breach of contract. The court was requested to order: 1. Yi XX, Wang X A, and Wang X B to return the loan principal of 434,946.54 yuan, interest of 1,011,834.63 yuan, late fee (repayment liquidated damages) of 78,639.22 yuan, and installment procedures of 82,569.06 yuan, totaling 1,607,989.45 yuan, and pay follow-up interest and repayment liquidated damages; 2. The costs of the lawsuit shall be borne by the defendant.
Yi Moumou argued: 1. The facts sued by a branch of the Bank of China are the same legal facts as the criminal facts of the crime of fraudulently obtaining loans determined by Yi Moumou in the effective criminal judgment, and the criminal case has determined that the losses of a branch of the Bank of China have been realized through recovery, and the criminal judgment has entered the enforcement procedure, requiring Wang Mouyi to perform the obligations determined in the effective legal documents, so a branch of the Bank of China cannot make repeated claims for the same loss, and his lawsuit should be dismissed in accordance with the law. 2. A branch of Bank of China can obtain relief through the provisions of the criminal judgment on the return of stolen goods and compensation, and the scope of the return of stolen goods is limited to the amount determined in the criminal judgment, and there is no interest, liquidated damages and other losses, so its claim for the principal and interest of the loan and various expenses cannot be established.
Wang Moujia argued: Wang MouB was criminally detained for fraudulently obtaining a loan, and the bank said that after Wang Moujia signed, the bank would issue a letter of understanding, and Wang MouB could come out. Wang Moujia signed the "Repayment Commitment Guarantee Letter" and paid 200,000 yuan to the bank, but the bank did not issue a letter of understanding, and Wang Mouyi did not come out. Now that Wang Mouyi has come out, the money should be repaid by Wang Mouyi.
Wang Mouyi argued: 1. Because the loan involved in the case was suspected of a criminal offense, the criminal verdict ruled that Wang Mouyi was guilty of fraudulently obtaining a loan, recovered 434,946.54 yuan of Wang Mouyi's criminal proceeds, and returned them to the victim unit. A branch of the Bank of China filed a lawsuit in this case, essentially negating the criminal judgment and violating the procedure, and the lawsuit should be dismissed in accordance with law. 2. Wang Mouyi is not a party to the loan contract, and a branch of Bank of China has no right to claim rights against him.
After trial, the court ascertained: Wang Moumou B wanted to borrow from the bank, because he already had a large loan in his name, so he found Yi Moumou and wanted to apply for a loan in the name of Yi Moumou, and Yi Moumou agreed. Wang Moumou forged a vehicle formality through Wei Moumou, an outsider to the case, and signed a credit card loan contract with a branch of Bank of China in the name of Yi Moumou, and the contract agreed to grant Yi Moumou a "special installment payment" amount of 1.49 million yuan, which was divided into 36 installments (one period is one month), and the installment handling fee rate was 10.5%. On March 10, 2014, a branch of Bank of China paid 1.49 million yuan as agreed. The legally effective (2019) Lu 0811 Xingchu No. 2023 criminal judgment found that Wang Moumou, Yi Moumou, and Wei Moumou, who were not involved in the case, obtained bank loans by deception, constituting the crime of fraudulently obtaining loans. As of August 10, 2017, the principal of 855,053.46 yuan and the interest of 50,112.57 yuan had been repaid, and the remaining loan principal of 634,946.54 yuan and interest of 306,727.58 yuan had not been repaid. The fifth item of the judgment is: recover 434,946.54 yuan of Wang Mouyi's criminal proceeds (634,946.54 yuan - 200,000 yuan repaid by Wang Moujia on behalf of Wang Moujia), and return them to a branch of the Bank of China of the victim unit. After the above-mentioned criminal judgment took legal effect, Wang Mouyi failed to perform the above-mentioned obligation of restitution, and after compulsory enforcement against Wang Mouyi, the court ruled to terminate the enforcement procedure because Wang Mouyi had no property to enforce for the time being.
On June 27, 2019, Wang Mouyi's father, Wang Moujia, issued a repayment guarantee letter to a branch of Bank of China, promising to repay the loans and interest of Bank of China that had not yet been repaid by Yi Moumou, as well as the related expenses incurred. At the same time, 200,000 yuan was returned. The 200,000 yuan has been deducted from the expenses of Wang Mouyi returned to the victim unit as determined in the (2019) Lu 0811 Xingchu No. 2023 criminal verdict.
On November 30, 2022, the People's Court of Rencheng District, Jining City, Shandong Province, rendered the (2022) Lu 0811 Min Chu No. 5488 Civil Judgment: 1. Yi Moumou shall repay the principal of the loan of 434,946.54 yuan and the handling fee of 82,569.06 yuan of a branch of the Bank of China within 10 days from the effective date of this judgment. interest and liquidated damages for repayment (calculated from August 10, 2017 to June 27, 2019 based on RMB 634,946.54; calculated at an annual interest rate of 24% from June 28, 2019 to RMB 434,946.54 to the date of actual payment); 2. Wang Moujia bears joint and several debts for the above-mentioned debts; 3. Other litigation claims of a branch of Bank of China are rejected. After the verdict was announced, Yi XX and Wang XX X X separately appealed. On March 30, 2023, the Intermediate People's Court of Jining City, Shandong Province, rendered the (2023) Lu 08 Min Zhong No. 922 Civil Judgment: 1. Yi XX repaid the loan principal of 434,946.54 yuan and the handling fee of 82,569.06 yuan from a branch of Bank of China within 10 days from the effective date of this judgment, and Wang Moumou was jointly and severally liable for the above debts;
Reasons for the Adjudication
The effective judgment of the court held that there were two points of dispute in this case: first, how to determine the liability of Yi XX and Wang Moumou, and second, how to determine the interest on the loan involved in the case.
1. How should the responsibility of Yi XX and Wang XX be determined
The "Reply of the Supreme People's Court on Issues Concerning the Application of Article 64 of the Criminal Law" stipulates: "Where the defendant illegally takes possession of or disposes of the victim's property, he shall recover it or order restitution in accordance with law. Where the victim raises an attached civil lawsuit, or separately raises a civil lawsuit requesting the return of property that has been illegally occupied or disposed of, the people's court will not accept it. The reason for the inadmissibility of the case is that the victim "separately filed a civil lawsuit to request the return of the property that was illegally occupied or disposed of", and does not include compensation for losses. Article 187 of the Civil Code of the People's Republic of China stipulates: "Where a civil entity shall bear civil, administrative and criminal liability for the same act, the assumption of administrative or criminal liability does not affect the bearing of civil liability; Where the civil entity's assets are insufficient to pay, priority is given to the use of civil liability. Paragraph 2 of Article 5 of the "Provisions of the Supreme People's Court on Issues Concerning the Scope of Civil Litigation Attached to Criminal Cases" also stipulates: "Where the losses cannot be made up after recovery or restitution, and the victim files a separate civil lawsuit with the civil division of the people's court, the people's court may accept it." "At present, a branch of the Bank of China has filed a civil lawsuit in this case for the loss of the loan principal and interest that cannot be refunded in the loan involved in the case, and it should be accepted in accordance with law. Yi, Wang Moumou, and Wang Moumou B asserted that a branch of Bank of China should not file a lawsuit in this case on the grounds that Wang Moumou had already ordered him to make restitution in the criminal judgment, which was contrary to the fact that Wang Mou B had not actually made restitution, the provisions of the above-mentioned laws and judicial interpretations, and judicial practice, and was not supported. The credit card loan involved in the case constituted the criminal crime of fraudulently obtaining loans, but civilly it was a fraudulent act as stipulated in Article 148 of the Civil Code of the People's Republic of China, which was a revocable act, and a branch of the Bank of China, as the defrauded party, had the right to choose to revoke it according to law, and it also had the right to choose to continue to perform the contract and require the lender to continue to repay the loan and pay interest. At present, a branch of Bank of China has chosen to continue to perform the contract, which should be supported in accordance with the law. As for the specific performance issues, it should be comprehensively balanced with criminal restitution in the actual performance or enforcement process, so as to ensure that a branch of the Bank of China will not receive duplicate repayment. Wang Moujia asserted that the loan contract was invalid on the grounds that the loan involved in the case constituted a crime of fraud, which was contrary to the above-mentioned legal provisions and was not supported. Yi's claim that Wang Moumou should be repaid on the grounds that Wang Moumou was the actual borrower was inconsistent with his party to the credit card loan contract involved in the case and should not be supported. At present, a certain branch of the Bank of China claims rights against Yi XX as a party to the credit card loan contract, and it should be supported in accordance with law. Wang Moujia signed a letter of commitment for joint repayment, and he should also bear the joint responsibility for repayment.
II. How to determine the interest on the loan involved in the case
The second paragraph of Article 496 of the Civil Code of the People's Republic of China stipulates: "Where standard clauses are used to conclude a contract, the party providing the standard clauses shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to clauses that have a major interest in the other party, such as exemption or reduction of its liability, and explain the clauses in accordance with the requirements of the other party." If the party providing the standard clause fails to perform the obligation of reminder or explanation, resulting in the other party not paying attention to or understanding the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. Article 2 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Civil Dispute Cases over Bank Cards stipulates that: "Where the issuing bank fails to perform its obligation to prompt or explain the standard terms such as interest, compound interest, fees, liquidated damages, etc., when entering into a bank card contract with the cardholder, resulting in the cardholder's failure to pay attention to or understand the clause, the people's court shall uphold the cardholder's claim that the clause does not become the content of the contract and is not binding on it." Where the card-issuing bank requests the cardholder to pay overdraft interest, compound interest, liquidated damages, etc., or to pay installment fees, interest, liquidated damages, etc., in accordance with the credit card contract, and the cardholder requests an appropriate reduction on the grounds that the total amount claimed by the card-issuing bank is too high, the people's court shall comprehensively consider factors such as the relevant national financial regulatory provisions, the amount and time limit of the outstanding repayment, the degree of fault of the parties, and the actual losses of the card-issuing bank, and make a ruling on the basis of the principles of fairness and good faith. "Although Yi Moumou signed the credit card loan contract involved in the case, Yi Moumou did not sign the "Bank of China Credit Card Contract" asserted by a branch of the Bank of China, and according to the statements and evidence presented by both parties, especially the person in charge of the credit card loan business involved in the case, Lian Moumou, a former staff member of a branch of the Bank of China, admitted in the interrogation record on June 28, 2017 that the loan materials involved in the case were collected by Wei Moumou, an outsider to the case, which is sufficient to prove that the interest agreed in the credit card loan contract of the Bank of China by a branch of the Bank of China The standard clauses such as late payment fees failed to perform the obligation of reminder or explanation, and there was material fault in the process of disbursement of the credit card loan involved in the case, so the standard clauses such as interest and late payment fees in the loan contract involved in the case asserted by a branch of Bank of China should not become the content of the contract and should not have legal effect on the borrower. As for the installment handling fee of RMB 82,569.06 claimed by a branch of Bank of China, which was manually added in the installment payment contract signed by Yi, it should be determined that Yi was clearly aware of it and should have paid it in accordance with the agreement.
Summary of the trial
The victim has the right to file a separate civil lawsuit against a subject of responsibility other than the subject of criminal responsibility. Victims cannot and should not be compensated through both criminal and civil cases. The issue of double compensation can be resolved through a balanced and coordinated approach to the determination and enforcement procedures of criminal recovery, restitution and civil liability. If the victim has already received partial compensation through criminal recovery, it shall be deducted from the loss as ascertained facts in the trial of the civil case; If no actual restitution is obtained, after the criminal and civil make their respective judgments, the problem of duplicate compensation shall be avoided by combining or coordinating enforcement in the enforcement procedure.
Associate indexes
Articles 148 and 187 of the Civil Code of the People's Republic of China
First instance: Civil Judgment of Rencheng District People's Court of Jining City, Shandong Province (2022) Lu 0811 Min Chu No. 5488 (November 30, 2022)
Second instance: Civil Judgment of Jining Intermediate People's Court of Shandong Province (2023) Lu 08 Min Zhong No. 922 (March 30, 2023)