The Review Of Interest Payment Based On Void Loan Contract

The interest payment based on void loan contract appeared in judicial practice frequently, but courts' attitude on this interest is unclear, and there is no consistent basis of calculation. Currently, theses on this problem are not many, and some mentioned interest payment based on void loan contract still can't hold its innate character, so that there are many different and unreasonable conclusions. Accordingly, this paper start from the problem in judicial practice and review the interest payment based on void loan contract, intend to find the essence of this interest and propose reasonable calculation standard.This paper is divided into five parts:The first part summarizes and analyses the situation of interest payment based on void loan contract in judicial practice. Courts' attitude on this interest is unclear, and there is no consistent basis of calculation. Meanwhile, we can find there are two different inclinations on courts' attitude to the essence of this interest, one is unjust enrichment and the other is damages. Courts' different tendency is a starting point and basis of the review.The second part mainly interprets which unjust enrichment got by debtor from occupies and using money can be calculated with standard of interest. In my opinion, this viewpoint is faulty that deems the interest payment based on void loan contract need to be refunded as unjust enrichment because regards it as fructus civiles. Fructus civiles is different from fructus, it only produced in bargaining. And then, usability of money obtained by debtor, passive benefit of finding substitute and income by using money are all unjust enrichment can calculated with interest standard. This part also discuses the influence of performance based on illegal reasons to unjust enrichment and the seizure of interest already abandoned by judicial practice.The third part mainly interprets which damages suffered by lender from cannot occupy and using money can be calculated with standard of interest. The damages based on void loan contract can use the achievement of tort law. And then, lose of money usability and prospect benefit can be calculated with interest standard. This part also discuses the influence of negligence counterbalance to damages.The fourth part proposes different standards of interest rate and due time according to the different essence of interest payment based on void loan contract. Consequently, the calculation standard of this interest is pluralistic, and lender should choose reasonable calculation standard according to different essence.The last part summarizes the main conclusions of this paper: the interest payment based on void loan contract is a remedy manner of unjust enrichment and damages, but it is not the unjust enrichment of fructus civiles. Therefore, the calculation standard of this interest should be confirmed according to lender's specific assertion, which kind of unjust enrichment or damages.