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Zhao Jun v. Xiang Huimin and He Xueqin (a case concerning dispute over private lending)
赵俊诉项会敏、何雪琴民间借贷纠纷案
【法宝引证码】

Zhao Jun v. Xiang Huimin and He Xueqin (a case concerning dispute over private lending)
(a case concerning dispute over private lending)
赵俊诉项会敏、何雪琴民间借贷纠纷案
[Key Terms]
private lending ; whoever makes a claim shall bear the burden of proof ; malicious collusion ; reversion of claims
[核心术语]
民间借贷;谁主张谁举证;恶意串通;驳回诉讼请求
[Disputed Issues]
1. Where one party of husband and wife fabricates a marital debt by maliciously colluding with a third party and acknowledges such debt unilaterally, but the lender fails to produce evidence to prove the debtor-creditor relationship, how the court will handle it; 2. whether the self-acknowledgement has legal effect
[争议焦点]
1.夫妻一方和第三人恶意串通,虚构具有婚内债务并单方认可债务,但出借人对借款关系无法举证的,法院应如何处理?其自认是否具有效力?
[Case Summary]
In accordance with the evidence rules for civil procedures that whoever makes a claim shall bear the burden of proof in disputes over private lending the party claiming that the debtor-creditor relationship is valid and effective shall produce evidence to prove that the debtor-creditor relationship is tenable or the borrowed money is delivered. In the judicial trial where the lender fails to prove such circumstances as the capability of funds lending...
[案例要旨]
依据民事诉讼谁主张谁举证的证据规则在民间借贷纠纷中主张有效的借款关系的一方应该提供借款关系存在或借款交付的证据。在司法审判中在合理的举证期限内出借人无法证明资金出借能力、符合常理的借款过程、借款的交付事实等情况的...
Zhao Jun v. Xiang Huimin and He Xueqin (a case concerning dispute over private lending) 

赵俊诉项会敏、何雪琴民间借贷纠纷案

[Summary] [裁判摘要]
1. Where one party of husband and wife is suspected of maliciously colluding with a third party and fabricating a marital debt through fraudulent litigation and the party acknowledges the debt unilaterally, the burden of proof of the “lender” to prove that the debtor-creditor relationship is tenable and valid and effective shall not be necessarily exempted. 一、夫妻一方具有和第三人恶意串通、通过虚假诉讼虚构婚内债务嫌疑的,该夫妻一方单方自认债务,并不必然免除“出借人”对借贷关系成立并生效的事实应承担的举证责任。
2. Where the spouse of the borrower does not participate in the proceedings and neither the lender nor the borrower explicitly abandons the share of debt that is likely to be borne by the spouse, to find case facts, the court shall add the spouse of the borrower who is an interested person of the case handling result to participate in the proceedings as a third person according to the law so as to form substantial resistance. 二、借款人配偶未参加诉讼且出借人及借款人均未明确表示放弃该配偶可能承担的债务份额的,为查明案件事实,应依法追加与案件审理结果具有利害关系的借款人配偶作为第三人参加诉讼,以形成实质性的对抗。
3. Where the lender only provides an IOU to evidence the debtor-creditor relationship, an in-depth investigation into supporting facts shall be made to check the authenticity of the debit and credit consensus, for instance, the necessity of the debt and the rationality of purpose of the fund. Where the lender fails to produce evidence to prove the delivery of the borrowed money, such factors as the financial status, the fund source, the delivery mode, and the witness shall be taken into full account so as to check the credibility of the statements of the parties. For a large sum of borrowed money, where there is only an IOU without any delivery certificate, or there are major doubts or contradictions in the statements of the parties, it shall be determined in accordance with the evidence rules that the “lender” fails to assume the burden of proof and the court shall render a judgment to reverse all claims of the “lender.” 三、出借人仅提供借据佐证借贷关系的,应深入调查辅助性事实以判断借贷合意的真实性,如举债的必要性、款项用途的合理性等。出借人无法提供证据证明借款交付事实的,应综合考虑出借人的经济状况、资金来源、交付方式、在场见证人等因素判断当事人陈述的可信度。对于大额借款仅有借据而无任何交付凭证、当事人陈述有重大疑点或矛盾之处的,应依据证据规则认定“出借人”未完成举证义务,判决驳回其诉讼请求。
Plaintiff: Zhao Jun, male, 45 years old, Chinese Han, domiciled in Shuicheng Road, Changning District, Shanghai Municipality. 原告:赵俊,男,45岁,汉族,住上海市长宁区水城路。
Defendant: Xiang Huimin, male, 44 years old, Chinese Han, with registered residence in Zhuxi Township, Xianju County, Zhejiang Province, domiciled in Honggu Road, Changning District, Shanghai Municipality. 被告:项会敏,男,44岁,汉族,户籍地:浙江省仙居县朱溪镇,住上海市长宁区虹古路。
Defendant: He Xueqin, female, 39 years old, Chinese Han, with registered residence in Zhuxi Township, Xianju County, Zhejiang Province, domiciled in Honggu Road, Changning District, Shanghai Municipality. 被告:何雪琴,女,39岁,汉族,户籍地:浙江省仙居县朱溪镇,住上海市长宁区虹古路。
The plaintiff, Zhao Jun, filed a lawsuit with the People's Court of Changning District, Shanghai Municipality against the defendants, Xiang Huimin and He Xueqin for dispute over private lending. 原告赵俊因与被告项会敏、何雪琴发生民间借贷纠纷,向上海市长宁区人民法院提起诉讼。
The plaintiff, Zhao Jun, alleged that: He and the defendant, Xiang Huimin, were friends. On July 20, 2007, Xiang Huimin borrowed 200,000 yuan from the plaintiff on the ground of house decorations and both parties agreed on an annual interest rate of 5%, effective for two years. On the same day, the plaintiff withdrew 200,000 yuan in cash from the safe case at his home, went to the dry cleaner operated by Xiang Huimin on foot, and delivered the money to Xiang Huimin, and Xiang Huimin issued an IOU on the spot. On July 23, 2009, Xiang Huimin paid the interest of 20,000 yuan to the plaintiff under the plaintiff's demand for debt repayment and requested the plaintiff to extend the loan term for two years. On July 27, 2011, the plaintiff demanded debt repayment again, but Xiang Huimin still failed to repay the money. In the view of the plaintiff, since the money involved was borrowed by Xiang Huimin and both the IOU and the Letter of Notice on Payment Reminder were confirmed with the signature of Xiang Huimin, he filed a lawsuit only against Xiang Huimin. He had no comment on whether the defendant, He Xueqin, should jointly assume the liability of debt repayment. The plaintiff requested the Court to order that Xiang Huimin should repay the borrowed money of 200,000 yuan and with the principal of 200,000 yuan, pay the interest from July 23, 2009 to the date when the judgment came into force at the annual interest rate of 5%. 原告赵俊诉称:原告与被告项会敏系朋友关系。2007年7月20日,项会敏以装修房屋为由向其借款人民币20万元,双方约定以年利率5%计息,期限为两年。当日,原告从家中保险柜中取出现金20万元,步行至项会敏经营的干洗店内向其交付借款,项会敏当场出具借条。2009年7月23日,项会敏在原告的催讨下支付利息2万元,并请求延长借款期限两年。2011年7月27日,原告再次向项会敏催讨借款,但其仍未能还款。原告认为,因本案借款系项会敏向其所借,借条和催款通知单亦由项会敏签名确认,故其仅起诉项会敏。至于被告何雪琴是否应当承担共同还款责任,其不予表态。请求法院判令项会敏归还借款20万元,并以20万元为本金,支付自2009年7月23日起至判决生效之日止按照年利率5%计算的利息。
The defendant, Xiang Huimin, contended that: He raised no objection to the facts as alleged by the plaintiff, Zhao Jun; however, he was incapable of repaying the debt at the present. As for the use purposes of the borrowed money involved, 100,000 yuan was used for decorating the house under the names of both defendants and another 100,000 yuan was used for the advanced repayment of the bank loan for the house purchased on August 2, 2007. Therefore, the borrowed money involved was joint debt of husband and wife and should be jointly repaid by both defendants. 被告项会敏辩称:对原告赵俊诉称的事实均无异议,但其目前无力归还借款。至于涉案借款的用途,其中10万借款用于装修两被告名下房屋,另外10万元于2007年8月2日用于提前偿还购买该房屋时的银行贷款。因此,涉案借款是夫妻共同债务,应由两被告共同偿还。
The defendant, He Xueqin, contended that: First, the loan fact alleged by the plaintiff, Zhao Jun, did not exist. In 2007, both defendants were well-funded and there was no need for them to borrow money. The IOU as provided by the plaintiff was forged by Xiang Huimin afterwards. He Xueqin originally filed an application for authenticating the actual formation time of the IOU; however, the authentication failed due to lack of authentication conditions. In addition, the plaintiff did not have the financial capability of lending 200,000 yuan at that time and the plaintiff did not provide any evidence on the delivery of the borrowed money. Second, He Xueqin was always unaware of the loan as alleged by the plaintiff. On June 18, 2009, both defendants concluded an agreement, which stipulated that a debt would not exist if any party did not acknowledge it. Therefore, even if the debt did exist, it should be the personal debt of Xiang Huimin. Third, both defendants were married on September 20, 2005 and they separated in July 2010. On August 25, 2010 and on May 12, 2011, He Xueqin once filed divorce lawsuits with the court. In both divorce proceedings, Xiang Huimin did not mention the borrowed money involved. At the present, the third divorce lawsuit of both defendants has been on the docket. Nevertheless, besides the debt in issue involved in this case, there were another two creditors who suddenly instituted lawsuits to the court to demand debt repayment. It was apparent that this case was a fraudulent lawsuit filed through malicious collusion between the plaintiff and Xiang Huimin with the aim to transfer property. Therefore, both the plaintiff and Xiang Huimin should be subject to legal liability. 被告何雪琴辩称:首先,原告赵俊主张的借款事实不存在。两被告在2007年期间自有资金非常充裕,无举债之必要。原告提供的借条是项会敏事后伪造的,何雪琴原已申请对该借条的实际形成时间进行鉴定,但因不具备鉴定条件而无法进行。且原告当时并不具备出借20万元的经济能力,其也未提供任何借款交付证据。其次,何雪琴对原告主张的借款始终不知情。两被告于2009年6月18日签订协议书,约定对外债务任何一方不确认则不成立。故该笔借款即使存在,也应当是项会敏的个人债务。再次,两被告于2005年9月20日结婚,2010年7月开始分居。何雪琴曾分别于2010年8月25日、2011年5月12日向法院提起离婚诉讼。在这两次诉讼中,项会敏均未提及本案借款。目前,两被告的第三次离婚诉讼已在审理中。然而,除本案系争债务以外,另有两位债权人突然诉至法院要求归还借款。显然,本案是原告和项会敏通过恶意串通,企图转移财产的虚假诉讼,应追究两人的法律责任。
Upon trial, the People's Court of Changning District, Shanghai Municipality found that: 上海市长宁区人民法院经审理查明:
The plaintiff, Zhao Jun, and the defendant, Xiang Huimin, were friends and both defendants were husband and wife who registered their marriage on September 20, 2005. There was one piece of IOU dated on July 20, 2007 issued by Xiang Huimin to the plaintiff, which stated that “Xiang Huimin hereby borrowed 200,000 yuan from Zhao Jun and would repay it before July 20, 2009, with the interest calculated at 5%.” There was the signature of Xiang Huimin as the borrower on the IOU. Afterwards, the plaintiff wrote a Letter of Notice on Payment Reminder dated on July 23, 2009, which stated that “Xiang Huimin borrowed 200,000 yuan from Zhao Jun and should repay it before July 20, 2009; however, the term has been expired and Xiang Huimin still failed to repay it. Zhao Jun hereby demanded debt repayment to Xiang Huimin.” Xiang Huimin remarked on the Letter of Notice on Payment Reminder that “I knew it. Due to mismanagement, I had no money to repay the debt and requested an extension of the term for two years, with the interest as usual.” Afterwards, the plaintiff wrote another Letter of Notice on Payment Reminder dated on July 27, 2011, which stated that “Xiang Huimin borrowed 200,000 yuan from Zhao Jun and upon demand for debt repayment for multiple times, Xiang Huimin still failed to repay it. Zhao Jun hereby demanded the repayment of debt and interest again to Xiang Huimin.” Xiang Huimin remarked on this Letter of Notice on Payment Reminder that “Due to mismanagement, I had no money to repay the debt and requested an extension of the term for two years, with the interest as usual.”
......
 原告赵俊与被告项会敏系朋友关系,两被告系夫妻关系,于2005年9月20日登记结婚。项会敏向原告出具落款日期为 2007年7月20日的《借条》一张,载明:“今我项会敏向赵俊借人民币200 000元正(贰拾万元正),于2009年7月20日前归还,利息按5%计算”,落款处由项会敏以借款人身份签名。后原告书写一份《催款通知单》,载明:“今项会敏向赵俊借款(贰拾万元正),于2009年7月20日前归还,但已超过期限,至今没还,特此向项会敏催讨借款”,落款日期为2009年7月23日。项会敏在该份《催款通知单》上加注:“我知道,因经营不善无钱归还,恳求延长两年,利息照旧”。此后,原告再次书写一份《催款通知单》,载明:“今项会敏借赵俊贰拾万元正,经多次催款至今没还,特此向项会敏再次催讨借款及利息”,落款日期为2011年 7月27日。项会敏则在该份《催款通知单》上加注:“因经营不善无钱归还,恳求延长两年,利息照旧”,并签署其姓名。
......

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