Comment On The Private Lending And Guarantee Contract Such As Mr.Wu's Suing Of Mr.Chen

Based on the discussion and analysis of cases of private lending and guarantee contract such as Mr.Wu's suing of Mr.Chen,the case details,the focus of disputes and the judgment of second instance,and with the academic theory research,court referee in practice and the relevant laws and regulations taken into account,three issues are analyzed in detail,as in:the validity of the loan contract and penal-civil mix solutions under the crime of illegally absorbing public deposits.Under the requirement of protecting the legitimate rights and interests of the parties involved in private lending,maintaining the order of the financial market and balancing the interests of all parties,it is the best choice to determine the validity of the loan contract and the guarantee contract under the crime of illegally absorbing public deposits.There is no specific provisions of the validity of the loan contract under the crime of illegally absorbing public deposits in current laws and regulations;on the basis of court judgements and via researches on compulsory regulations,with the interpretation of the existing laws and regulations and Trichotomy of Law,which was proposed by Professor Wang Liming,mandatory provisions and mandatory administrative provisions are distinguished and mandatory provision that loan contract under the crime of illegally absorbing public deposits is not illegal is enacted and contracts for lease will not be necessarily ineffective due to the regulation of penal law.Guarantee contracts are subordinate to contracts for lease and the validity is deemed to be dependent on that of the master contracts;meanwhile,in order to better protect the rights and interests of the creditors,guarantee contracts under the crime of illegally absorbing public deposits are effective in principle except their own problems.According to the researches on penal-civil mix issues by academic and practical circles,it can be known that adhering to the principle of considering both penal and civil aspects with the former prevail in particular cases accords better with the legislative intention.In this case,the limits of criminal law on the protection of private rights are taken into account,as well as the indications of existing laws and regulations and the deficiencies of penal law priority in the past,and the rights and interests of creditors are also better protected.Before the disputes on private lending and guarantee contracts of Mr.Wu's suing Mr.Chen was published as a typical case on Communique of the Supreme People's court,the validity of guarantee and loan contracts under the crime of illegally absorbing public deposits were normally rejected in judicial practice.The practice of denial of civil rights relief simply because of being involved in criminal offense is problematic in reality.No matter from the perspective of the provisions of current laws and regulations,or national interest and social public interest,the approval of the validity of guarantee and loan contracts under the crime of illegally absorbing public deposits and the principle of thing both penal and civil issues into consideration have guiding significance on the current academic researches and judicial practices.