(1) Party A and Party B sign a loan contract, in which Party A is the borrower and Party B is the lender, with a loan amount of 5 million yuan and a loan term of two years.

Party C and Party D guarantee the loan contract, and the guarantee clauses stipulate that if Party A fails to repay the loan on time, Party C and Party D shall bear the guarantee responsibility. E. The loan contract between Party A and Party B is mortgaged. Collateral is a batch of cloth (worth 3 million yuan), and the scope of guarantee is not agreed. Please answer the following questions:

1. Both Party A and Party B are productive enterprises. What is the validity of the loan contract? Why?

2. Both Party A and Party B are production enterprises, and Party A is unable to repay the loan at maturity. Should Party C bear the responsibility? Why?

3. Assuming that the contract between Party A and Party B is valid, Party A and Party B decide to postpone repayment for 65,438+0 years, and inform Party C, Party D and Party E of the contents of the deferred repayment agreement, but Party C, Party D and Party E did not reply. Are Party C, Party D and Party E liable for the guarantee? Why?

4. Party A and Party B decided to give up E's mortgage guarantee and sign an agreement, but they did not get the consent of Party C and Party D. Do Party C and Party D bear the guarantee responsibility? Why?

5. If Party A can't repay the loan due, Party B applies to the court to auction the cloth. The auction price is 5.5 million yuan, and 5.2 million yuan is obtained after deducting the expenses, which is enough to repay the principal, interest and expenses of Party B.. B can I pay off all my debts with the proceeds from the auction? Why?

6. The cloth of Party E is lost due to force majeure; C was declared missing and his property has been kept by Geng. Now that Party A can't repay the due debts, and Party D has repaid all the creditor's rights of Party B, to whom can Party D exercise the right of recourse? Why?

Case analysis of private lending

1, invalid. The loan contract belongs to illegal fund lending, and the contract is invalid.

2, do not assume the responsibility of guarantee, but should bear the responsibility of fault compensation. The liability for this fault is one third of the unpaid amount. The main contract is invalid, and the guarantee contract is invalid. However, if the debtor, guarantor and creditor are at fault, they shall be liable according to their respective faults.

3. Guarantor Party C and Party D shall not undertake the guarantee responsibility, but Mortgagor E shall still undertake the guarantee responsibility. If the guarantee period is not stipulated in the guarantee contract, it shall be six months from the date when the performance period of the main debt expires. Now Party A and Party B delay the repayment period by one year, and without the written consent of the guarantor, the guarantor only assumes the guarantee responsibility within the original guarantee period. Because the warranty period exceeds six months, the guarantor does not assume the warranty responsibility. The extinction period of mortgage right is two years from the expiration of the limitation period of main debt litigation. Although Party A and Party B delayed the repayment period by one year, it still did not exceed the extinction period of the mortgage right, so Party E should bear the mortgage guarantee responsibility.

4. Guarantors Party C and Party D still bear the guarantee responsibility of 2 million yuan. Where the creditor waives the property guarantee, the guarantor shall be exempted from the guarantee liability within the scope of waiving the property guarantee.

5. yes. If the same creditor's right has both a guarantee provided by a third party and a mortgage provided by a third party, and the scope of the guarantee is not agreed, the creditor may request full payment from any guarantor.

6. You can recover from the debtor A and the property trustee G. After the guarantor assumes the guarantee responsibility, he obtains the right of recourse against the debtor. After the guarantor assumes the guarantee responsibility, he has the right to recover his share from other guarantors. As the guarantor of mortgage, if the collateral is lost, the mortgage right will also disappear. Therefore, he lost the identity of the mortgage guarantor, and Ding could not recover from E. C disappeared and his property was kept by Geng. A property custodian may be a party to a lawsuit. Therefore, you can recover from Geng

(2)1in the spring of 998, a fuel company undertook internal leasing contract, determined the contracting objectives of each unit and the number of employees to be hired according to the assets and capital verification of the enterprise, and then selected the contractor, who then combined employees among all employees of the company according to the approved number of employees, and implemented two-way selection.

There are two ways to bear the principal withdrawal: one is that the undertaker bears it personally, and the other is that the undertaker and the merged personnel bear it together.

After the employee Lu contracted the non-staple food department of the shopping mall through bidding, he subcontracted the sugar and tea department to Lai. The two signed a contract as representatives of the non-staple food department and the sugar and tea department respectively, and agreed on the number of four people in the sugar and tea department, and the principal was paid in one lump sum. The contract period is two years.

On April 3rd, 1998, Laimou gave Lumou a lump sum withdrawal of the principal of 14485 438+08 yuan, and Lumou gave the above withdrawal principal to the company. According to the company's requirements, Lai joined Li and other three people as salespeople, and raised 4,000 yuan from each of them to solve the cash flow difficulties. On April 30th, 1998, after receiving Li's money, Lai issued a receipt to Li, which read: "Received Li's money of 4,000 yuan." . During the operation of the Sugar Tea Department, the salaries of Lai and Li were paid by the Sugar Tea Department according to the company's file salary standard. After paying the pension, housing accumulation fund, unemployment insurance and other expenses, the salaries of the four people are all around 2 10 yuan -250 yuan/month, and there is no other profit dividend except salary. On March 26, 2000, the sugar and tea department stopped operating, but the profit and loss during the operation period were not liquidated. After the two sides had a dispute over the return of the fund-raising, Li appealed to the court of first instance and demanded to return the loan of 4,000 yuan.

[Judgment] The court of first instance held that based on the lease contract signed with Lu and the principal paid, he borrowed 4,000 yuan from Li as working capital during the operation period and agreed on the use period, and both parties should perform it as agreed. Li's request to return the loan to a certain place is clear in fact, sufficient in evidence and well-founded, and should be supported; The court ordered Lai to repay Li's loan of 4,000 yuan within 10 days after the judgment came into effect, and the litigation costs were borne by Lai.

After the verdict was pronounced in the first instance, Lai refused to accept it and appealed to the court of second instance.

After trial, the court of second instance held that Lai did not issue a debit note to Li after receiving 4000 yuan, but issued a receipt for fund-raising. In the contract signed by Lai and Lu, Lai was a representative of the sugar and tea department, not in his personal capacity. According to the salary distribution of Lai and Li, it can be seen that all four people pay wages according to a unified standard, and Lai has no more income than others. In the certificate issued by the fuel company, it is also confirmed that all departments of the mall adopt the collective operation mode of * * * *. The above evidence can confirm each other and prove that Lai and Li are in partnership. * * * After raising funds, pay the company the payment for the sugar and tea department, * * * jointly operate, * * * enjoy the profits, and * * * bear the risks. There is no loan relationship between the two parties, so Li's claim cannot be established and will not be supported. The judgment revoked the first-instance judgment and rejected Li's claim.

After the judgment of the second instance came into effect, Li refused to accept it and applied to the procuratorate for a protest. The procuratorate believes that the court of second instance found that Li and Lai were in partnership, and the main evidence for dismissing Li's claim was insufficient, requesting a retrial.

[Retrial] During the retrial of this case, the collegial panel agreed that there was insufficient evidence to identify Lai and Li as partners. However, there are two different opinions on the application of the law.

One view is that the 4000 yuan charged to Li in the past was a fund-raising loan. Fund-raising behavior must comply with the provisions of national laws and regulations. It is an invalid civil act to raise funds from employees without the approval of the management authority, which violates the relevant provisions of the Notice of the People's Bank of China on Strengthening the Management of Internal Fund-raising. According to Article 61 of the General Principles of the Civil Law, "After a civil act is confirmed to be invalid or revoked, the property acquired by the parties due to the act shall be returned to the party who suffered losses", and it shall be ordered to make restitution; The first trial did not properly handle the effective loan behavior, but decided to return it to a certain place, and the result was correct. The judgment of second instance shall be revoked and upheld.

Another point of view is that although there is not sufficient evidence to prove that the two parties are in partnership in the second instance, because there is no loan relationship between Li and Lai, their claim to ask Lai to return the loan cannot be established and the judgment of the second instance should be maintained.

[Comment] The key to handling this case is how to identify the nature of the fund-raising receipt issued by Lai to Li. Lai signed a contract as the head of the sugar and tea department, charged the employee Li 4,000 yuan, and issued a receipt to Li, which was true. Advocating partnership with Li and other three people, but there is no written partnership agreement between the two parties, and no more than two unrelated people prove the existence of oral partnership agreement. In the second instance, it was found that the evidence that Lai Mou and Li Mou participated in the partnership together was inconclusive and insufficient, and the evidence that the procuratorial organ "partnered with Li Mou" was insufficient. In this case, the most direct and main written evidence provided by Li Mou was the receipt for fund-raising issued by Lai Mou, which stated that the nature of the money paid was "fund-raising" rather than "borrowing". Li accepted the receipt, indicating his approval of the contents of the receipt. No evidence was provided to prove that the receipt was a civil act committed by fraud, coercion or taking advantage of a person's danger, and no evidence was provided to prove that there was a major misunderstanding or the situation in obviously unfair. The fundraising receipt shall be confirmed; Li was the plaintiff in the first trial and the protester in the retrial. According to the evidence rule of "who claims, who gives evidence", he should bear the burden of proof for the fact that he claims that there is a loan relationship between the two parties, but if he fails to provide conclusive and sufficient evidence to prove his claim, he should bear the legal consequences of not giving evidence; The dispute between the two sides is actually caused by the return of fund-raising funds rather than the return of loans. Li's claim for repayment of the loan cannot be established and is not supported. He should claim his rights independently according to the fact that he is here to raise funds.

To sum up, although the second trial found that the evidence of the partnership between the two parties was insufficient, Li could not provide evidence to prove that there was a loan relationship between him and Lai, so it was not improper to dismiss his claim.

It should be noted that this case is a retrial case and should be tried according to the original litigation request of the parties. If the nature of the legal relationship or the effectiveness of the civil act advocated by the parties is inconsistent with the determination made by the people's court according to the facts of the case, the people's court shall inform the parties that they can change the litigation request and make a judgment according to the changed request.