The Research Report Of The Case On Private Lending In Which Interest And Penalty Co-exist

With the development of market economy, the country gradually released the limitation of non-governmental microfinance, and formulated a series of policies on encouraging, guiding and supporting the folk lending. And the contradiction of fund supply and demand is increasingly protruding, regional folk lending and the scale expands unceasingly, from microfinance lending between citizens, to today’s lending between citizens and legal persons and between citizens and other organizations of the wholesale borrowing even huge borrowing. Large market and the frequency of the transaction are unprecedented, and scholars call it "grey finance". Therefore, how to guide and standardize the informal lending have become the social concerns from all walks of life, and also have brought new challenges for the court’s trial. As most of the private lending funds are idle cash, they determine the characteristics of folk lending, free and universal. But in real life, in most occasions, the lending relationship between the two parties are relatives or colleagues, fellow, students and other social relations, their lending and borrowing show the simplicity and informality in borrowing form. At the same time, while under the guidance of market economy, in order to avoid the risk of its creditors or to maximize their own interests as much as possible, often in the case of the interest on loan contract have agreed, and provisions on the bearing of liquidated damages of the debtor and other obligations or loss directly not contract interest, liquidated damages or losses directly. This brings new challenges to the applicable law and court trial practice. According to the contract of the spirit of autonomy, the parties may specify in the folk lending and the proportion of the number of liquidated damages and liquidated damages in the contract amount, but the liability for breach of contract on the one hand is to admit that private law autonomy and freedom of contract, on the other hand, in fact to prevent rights abuse of injustice and acknowledge the rationality of the public intervention, The choice of the value of this system is directly related to personal interests and social order. Penalty due to breach of contract as a predetermined liability for breach of contract, and its relationship with the default situation exists. As it is performed on justice, appropriate balance in the specific circumstances of the default in factual inequality between trading subjects should be given, making the parties establish the contract terms on fair. Private lending dispute resolution is a barometer of the folk finance and the local economy. Once processing is unfair, it directly affects the legal force of justice and the court’s credibility, and even social stability. Standardizing the booming private lending behavior and improving the lending rate for the implementation of the contract and enforced in accordance with the law play an important role in stabilizing country financial services in the market. This article from the development of the private lending, properties such as its theory, combined with Court of FeiXi Court (Feixi county is the national hundred county, folk lending boom,representative) From data collected from2011to2012within this kind of case, Analysis are made on this basis, while finding out the law of trial practice, and combined with practice, complying with the law. Trial practice recommendations are proposed on the basis of the deal with private lending cases involving loss such as interest and penalty due to breach of contract agreement.