Judges seek clarity on illegal lending

Lawmaker says fraudulent deals should be treated as criminal acts

Judges have called on lawmakers to clearly define illegal private lending and provide guidelines for the police, prosecutors and courts as soon as possible to prevent financial risks.

Personal loans between private parties are legal in China, provided the agreed annual interest does not exceed 24 percent, under guidelines from the Supreme People's Court.

In recent years, disputes over missed payments have become commonplace in civil courts nationwide, as lenders file lawsuits to reclaim the money they are owed, either in cash or other assets, such as property.

However, judicial officials are concerned many cases may involve lenders using illegal methods and manipulation to make large profits from vulnerable borrowers, according to Li Li, a civil court judge who specializes in financial cases in Fangshan District People's Court in Beijing.

Jiang Nan, a criminal judge in the capital's Haidian District People's Court, said that those illegal methods include private lenders offering loans to people who they know will default, so they can force them to hand over property or other assets. That is fraud, Jiang said.

On Sunday, the SPC issued a notice ordering civil courts - which handle the vast majority of private loan defaults - to strictly distinguish crimes from economic disputes when dealing with such cases and to transfer suspect cases to the police.

Li, who is also a national legislator, welcomed the move but said judges still need a clear definition of illegal lending as well as advice on how to collect evidence.

Civil court judges can rule only on the facts in front of them, such as bank transfer documents and loan agreements, she said. Only when there are signs of serious wrongdoing - such as threats of violence or blackmail - will a case be referred to the police for investigation.

Li said her court heard about 400 disputes involving private loans in 2012. Last year, the number was almost 3,000, and she estimated that the vast majority of them involved illegal behavior. However, judges and police struggle to find sufficient evidence to open a criminal case, she said.

"Civil punishments are not powerful enough to solve this increasingly serious problem. We urgently need criminal penalties to combat illegal private lending," Li said. "It should be defined as a crime, as illegal loans cause great damage to social stability, people's personal and property safety and the financial market."

As a deputy to the National People's Congress, Li submitted a suggestion to amend the Criminal Law at the annual session of the top legislature in Beijing in March. Under that suggestion, it would be a criminal offense to fraudulently take possession of another's property in the name of a private loan.

She also highlighted several situations in which lenders should be given heavy punishments, such as when borrowers are injured or die over disputes about private loans.

Li said what she most wants to see is the legislature officially identify the behaviors as soon as possible. Her suggestion has yet to receive a response from the NPC.

Jiang said revising the law needs some time, adding that providing specific steps on how to transfer cases from civil tribunals to police is more practical in the short term.