The plaintiff Zhang and the defendant Li are friends. Zhang transferred 300000 yuan to Li, who issued a promissory note. After lending the funds, Li repeatedly paid a portion of the loan interest to Zhang at a monthly interest rate of one-third. Due to Li's inability to continue paying the promised principal and interest as agreed, this lawsuit has been filed. Zhang advocates for Li to fully repay the loan principal and pay the loan interest within the legal limit; Li claimed that the source of the funds lent by Zhang was a bank loan, and the loan relationship was invalid, and requested the revocation of the promissory note issued to Zhang.

    After trial, the court found that although Zhang claimed that the loan he borrowed was his own funds, he could not provide clear evidence of the source and flow of the funds to support it. Zhang also clearly acknowledged that he had a loan of more than 800000 yuan from the bank before lending the funds involved in the case, and that the time of the bank loan he recognized was similar to the lending time of the funds involved in the case. As a type of currency, in the case where Zhang claimed that the large loan was unrelated to the loan but did not provide evidence to support it, in accordance with Article 13 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Lending Cases", and referring to the relevant interpretations of this article in the "Interpretation and Application of the Judicial Interpretation of the Supreme People's Court on New Civil Lending" and the "Minutes of the National Court Civil and Commercial Trial Work Conference", Regarding the criteria for determining "high interest transfer loans", The funds lent by Zhang to Li in this case should be presumed to involve arbitrage through high interest transfer of loans from financial institutions.

    Therefore, the private lending relationship involved in the case should be deemed invalid according to law. The civil legal act is invalid, and the property obtained by the actor due to the act should be returned. After deducting the already repaid part, the final judgment is that Li should return 228700 yuan to Zhang. Neither the plaintiff nor the defendant appealed, and the judgment in this case has taken legal effect.

    In private lending, the lender's funds must be their own funds. The private lending behavior of lenders embezzling credit funds from financial institutions and lending them to borrowers at high interest rates not only increases financing costs but also disrupts credit order, violating the prohibitive provisions of the law. Such private lending behavior should be deemed invalid.

    However, in judicial practice, because currency is a type of commodity, after the credit funds of financial institutions are disbursed, lenders generally do not directly pay the funds to borrowers through transfer. Often, there are behaviors such as fund circulation and withdrawal before reaching the actual borrower to avoid financial institution's fund supervision. Lenders also often use this as an excuse to deny the connection between the loan and the credit funds of financial institutions. In this case, combined with the fact that private lending is only a supplement to financial market financing and not a positioning for civil subjects to obtain improper economic benefits, we believe that the recognition of "high interest refinancing" should be broadly controlled to avoid the proliferation and alienation of private lending behavior, that is, borrowers can provide evidence to prove that the lender still owes the bank loan when signing the loan contract and has not yet obtained it. It's still there, Especially if the lender cannot provide evidence to prove that the lent funds are their own funds, it can generally be assumed that the lender has embezzled credit funds.

    This article is transferred from the WeChat official account "Shandong Gaofa". Thank you!