Can the penalties be taken into account?

Religor scale of interest

(The Minutes of the 2021 Trip of the Supreme People's Court of the Supreme People's Court)

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Summary

Bank A signed a loan contract with Company B, which agreed that Bank A provided 400 million yuan to Company B, 36 months of loan periods, 10%of the contract interest rate, and the interest rate of overdue loans shall rise by 50%according to the contract interest rate. The borrower is accommodated to the unpaid interest measure. Since then, Bank A claims that the loan expires in advance on the grounds of company B's breach of contract, and Company B requires the proofing principal and interest of the loan.

Legal Issues

Can the penalties be taken into account?

Different opinions

A said: negative said

Article 20 of the "Renminbi Interest Interest Management Regulations" stipulates that interests that cannot be paid during the loan period may be accommodated. At present, there are no penalties that have no penalty interest. Punishment measures are not allowed to pay for profit, which can not only be exempted from double penalties, meet the principles of fairness and compensation, and also help reduce financing costs.

B said: definitely say

The "Notice of the People's Bank of China on the RMB loan interest rate -related issues" (hereinafter referred to as the "Notice of Loan Interests"), paragraph 3 (2), (notice of loan interest rates "), which can be charged for compound interest, shall include interest payments and penalties during the period. The current law does not prohibit the calculation of penalties for penalties. Instead, it allows the parties to agree on the loan to settle method, as long as it does not exceed the upper limit of the interest.

Judge Conference Opinions

Caiyi said

Punishment and compound interest are usually only applicable to financial lending. In the financial lending, interest during the loan period can be calculated. The calculation basis for compound interest at this time is the corresponding interest rate of interest that is not paid at the end of the end. The penalties for the loan after the loan are not included in the end of the end of the end of the end. Of course, if the borrowing contract is clearly agreed on the overdue end -of -term end and overdue penalties, there may also be a problem of refractive interest rates. In view of the fact that the current law has not prohibited regulations on the penalty of penalties, according to the principle of autonomy, the parties shall be allowed to make such transaction arrangements, but shall not exceed the legal interest rate limit. Considering that the financial lending contract is usually a format contract that a financial institution is proposed in advance, the terms of whether there are penalties and how to calculate the compound interest shall be proved by the financial institution to prove that it has fulfilled the prompts and explanation obligations.

Source: "Minutes of the Judge Meeting of the Second Tour Court of the Supreme People's Court (3rd Series)" (editor of He Xiaorong, published in June 2022 of the People's Court Press), Civil Law Reference

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