What are the ways to handle creditor and debt disputes?

Abstract: Creditor's rights and debt disputes are a kind of property legal relationship, which means that creditor's rights and debt disputes are closely related to property. So, what are the ways to deal with creditor's rights and debt disputes? How to file a debt dispute lawsuit? Below, follow the editor to take a look and find out more! What are the ways to deal with creditor's rights and debt disputes

1. Reconciliation Law

Negotiated settlement means that the parties to creditor's rights and debts directly negotiate or invite a third party to mediate on the basis of voluntariness and mutual understanding. , resolve disputes. When a creditor's right expires or is about to expire, if the debtor is temporarily unable to repay the debt but is sincere in repaying the debt, the creditor may negotiate with the debtor on the time limit, method, and amount of debt performance, and urge the debtor to perform the debt or sign a repayment agreement. If the creditor's right is secured by a mortgage or a third party provides a guarantee, the creditor may negotiate with the mortgagor or guarantor so that the mortgagor can repay the debt with a sufficient amount of mortgaged assets, or the guarantor can repay the debt.

2. Mediation Law

A written application for mediation may be submitted to the local People’s Mediation Committee. According to the "Several Provisions on People's Mediation Work" promulgated by the Ministry of Justice, applying for mediation must meet the following conditions:

Have clear basic information about the person being applied for mediation, such as a citizen, legal person, etc.

There are specific mediation requirements, such as requiring the respondent to perform repayment obligations, etc.

Have factual basis for filing an application for mediation, such as loan contract, guarantee agreement, etc.

This dispute falls within the scope of the People's Mediation Committee. After reaching an agreement through mediation, the debtor shall perform its obligations as agreed and shall not change or terminate the agreement without authorization. If the debtor regrets or partially repents after signing the agreement, the creditor may file a lawsuit with the People's Court and request an order to order the other party to perform the mediation agreement.

3. Arbitration Law

According to the provisions of my country’s Arbitration Law, arbitration uniformly implements the system of either arbitration or trial, and one arbitration is final. Compared with the two-instance and final system of litigation, arbitration is more It is conducive to the rapid resolution of disputes between parties. The parties applying for arbitration shall submit the arbitration agreement, application form and copies to the arbitration institution. The application must state in detail the name, gender, age, occupation, etc. of the parties concerned as well as the factual reasons. Resolving debt disputes through arbitration has strong confidentiality, and most parties do not have fierce confrontation between them. In addition, filing for arbitration is generally less expensive than filing a lawsuit.

4. Procedural Law

Litigation of debt disputes is a civil lawsuit. For some cases that are more complex, difficult for the other party to deal with, or difficult to resolve through other means, creditors may choose litigation procedures to resolve them. The advantages of litigation are as follows:

The court is the final and enforceable solution to debt disputes.

The time limit for litigation is strictly limited by law. my country's Civil Procedure Law stipulates that after the court receives a civil complaint or oral complaint from a citizen, the first-instance hearing period for a civil case is 6 months, which may be extended for 6 months under special circumstances; if the court is not satisfied with the first-instance judgment, , the party concerned may appeal to the higher people's court; if the party is dissatisfied with the first-instance ruling, the party must appeal to the higher-level people's court within 10 days, and the second-instance hearing period for civil cases is 3 months. The court will issue the judgment immediately after the judgment.

5. Law on Application for Payment Order

Article 191 of my country’s Civil Procedure Law stipulates: “After accepting the application, the people’s court shall examine the facts and evidence provided by the creditor and make a decision on the application. If the creditor-debt relationship is clear and legal, a payment order should be issued to the debtor within 15 days from the date of acceptance: if the application is not established, the ruling will be dismissed. "If the debtor does not consciously perform its obligations within the specified date and does not file a written objection, the creditor may. Apply to the People's Court for compulsory execution.

6. Application for Preliminary Execution Law

Preliminary execution means that before the People’s Court makes a judgment in certain cases, in order to solve the plaintiff’s current life and other difficulties, it first executes certain property against the defendant. temporary measures. Article 97 of my country’s Civil Procedure Law stipulates: “The People’s Court may rule on preliminary enforcement of the following cases based on the application of the parties: (1) Recourse for alimony, support, childcare, pensions, and medical expenses; (2) To pursue labor remuneration; (3) To execute in advance due to urgent circumstances.

”

To apply for advance execution, the following conditions should be met:

The rights and obligations between the parties are clear and affirmative;

There is no treaty of payment between the two parties. Obligations only exist when one party enjoys the rights and the other party assumes the obligations;

The urgency of exercising rights means that the party enjoying the rights urgently needs to realize its rights. Failure to realize them will seriously affect their life or production. ;

An application must be made by the party concerned;

The respondent has the ability to perform.

7. Apply for compulsory execution of the Notarization Law

Enforcement. Execution notarization refers to the notarization of debt documents based on the application of the parties, and if the documents for recovery of debts and items are found to be unquestionable after review and verification, the notary office notarizes the debt documents and gives them enforceable effect in accordance with the law. The creditor saves the complicated litigation process and saves litigation costs. It is a simple and efficient method of debt collection. When a party applies for notarization of a debt document with enforceable effect, it should be submitted to the jurisdiction (that is, the place where the party is domiciled or the place where the act occurred). Apply to the notary office and provide the identity certificate of the party concerned. If it is a legal person, you must provide the legal person qualification certificate. If you have an authorized agent, you must provide your identity document and power of attorney; debt documents that need to be given enforceable effect, such as repayment Agreements, IOUs, etc.; documents related to economic guarantees, such as mortgage agreements, letters of guarantee, etc.; other relevant materials, such as the debtor's funds and proof of repayment ability; to grant enforcement effect, the creditor must provide proof that the borrower failed to repay the loan on time.

8. Priority Right to Repayment Law

According to the provisions of my country's Guarantee Law, the debtor or a third party may provide a mortgage or pledge of real estate or chattel to the creditor as a guarantee for the performance of the debt. When the debtor fails to perform its debts, the creditor has the right to receive priority compensation from the price of the mortgaged or pledged property or the price from the auction or sale of the property in accordance with legal provisions. For example, if the obligor in a custody contract, processing contract, or transportation contract does not pay for custody. If there are any fees, processing fees or transportation fees, the right holder can retain the property for storage, processing or transportation, and have priority in auctioning or selling the property.

9. The guarantor’s priority right of recovery law

It means that after assuming the guarantee liability, the guarantor has the right to request repayment from the debtor. Under normal circumstances, the guarantor can only claim the right of repayment from the debtor after paying off the debt it guaranteed. However, under special circumstances, the guarantor can also claim the right of repayment in advance. Exercising the right of recourse. Article 32 of my country’s Guarantee Law stipulates: “After the People’s Court accepts the debtor’s bankruptcy case, if the creditor fails to declare its creditor’s rights, the guarantor may participate in the distribution of the bankruptcy property and exercise the right of recourse in advance. "The reason why the law stipulates this is because in this case, the guarantor still has the obligation to ensure repayment to the creditor. If the guarantor does not pursue repayment in advance, after the bankruptcy property is divided, it will lose the object of repayment, resulting in no way. Compensated losses.

10. Subrogation Law

The so-called creditor's right of subrogation is the right of the creditor to exercise the rights of the debtor in his own name. The seventh chapter of my country's Contract Law. Article 13 stipulates: "If the debtor fails to exercise its due creditor's rights, causing damage to the creditor, the creditor may request the People's Court to exercise the debtor's creditor's rights in its own name. "The occurrence of the right of subrogation must meet the following conditions:

There is a legal creditor-debt relationship between the creditor and the debtor;

The debtor enjoys the due creditor's rights against the third party;< /p>

The debtor is lazy to exercise his rights;

The debtor's laziness to exercise his rights puts the creditor's due creditor's rights in danger of not being realized, and the creditor has the need to preserve his creditor's rights.

How to provide evidence in creditor-debt disputes

1. Creditors should provide evidence in debt disputes

1. Provide IOUs, IOUs or IOUs that can prove the existence of the creditor-debt relationship. Written evidence such as loan contracts. If there is no documentary evidence, the time, place, and amount of the creditor-debt relationship should be provided, and disinterested witness testimony or evidence clues should be provided.

2. If there is a guarantor, the time, place, and amount of the creditor-debt relationship should be provided. Provide the name, gender, age, workplace and address of the guarantor; if the guarantor is a legal person, the name of the legal entity, legal representative and address should be provided. If there is a guarantee agreement, a written guarantee agreement or guarantee terms should be provided.

3. If there is a mortgage, supporting materials such as the name, quantity, price, storage location and name of the custodian of the mortgage should be provided.

4. Provide proof of the debtor’s overdue or incomplete performance of its obligations and proof of claims for rights during the statute of limitations.

5. Regarding the corresponding evidence of *** and the defendant, if the other spouse is listed as *** and the defendant, proof of marriage relationship should be submitted; the shareholder's capital contribution is insufficient, the capital is withdrawn, and the shareholder abuses the independent status of the legal person and corresponding evidence of shareholders’ limited liability.

2. In debt disputes, the debtor should provide evidence

The debtor should mainly provide evidence that is sufficient to prove that the debt has been performed or has been changed or cancelled. If you provide forged or deceptive materials, you will be held legally responsible.

3. Distribution of the burden of proof in debt disputes

1. If the creditor can prove the fact of payment but cannot provide a loan agreement, and the two parties have a dispute about the lending relationship, the creditor shall explain the existence of the lending relationship between the two parties. Provide further evidence. If it can be ascertained that there is a loan relationship between the two parties, it will be tried as a private lending dispute; if it is found that the debt is caused by other legal relationships, the court should explain to the parties that after the creditor changes the claim and reason, the trial will be heard according to other legal relationships. The creditor insists If no change is made, the judgment shall be made to dismiss the litigation claim.

2. For creditors who can provide a loan agreement but cannot prove the fact of payment, the burden of proof will be assigned to the creditor who claims that the agreement has been actually performed; for creditors who can prove the fact of payment, they can also provide a loan agreement, but the debtor If there is an objection to the authenticity of the loan agreement or signature, the burden of proof for applying for appraisal will be assigned to the debtor who claims that the agreement is false; if it is unclear whether the loan is a personal debt of the debtor or a joint debt of the couple, the loan will be used for the daily life of the couple. *With life or business the burden of proof is assigned to the creditor.

3. The creditor asserts its claim with an IOU, and the debtor protests that the loan amount stated in the IOU includes interest or is only interest, and the evidence provided is sufficient to cause the judge to have reasonable doubts about the principal amount stated in the IOU. , it can be determined that the creditor bears the burden of proof as to the authenticity of the principal amount of the IOU.

4. If it is necessary to confirm whether the IOU is authentic through judicial appraisal, both parties can apply for appraisal. If neither party applies, the court can make a decision based on the specific circumstances of the case: If the creditor only sues based on the evidence and there is no other evidence If there is reasonable doubt as to the authenticity of the supporting evidence or IOU, the creditor shall apply for appraisal, and the debtor shall provide handwriting comparison samples. If the IOU and other evidentiary materials provided by the creditor have a certain degree of credibility and the debtor objects to the authenticity of the IOU but fails to provide a basis for rebuttal, the debtor shall apply for appraisal.

How to deal with personal debt disputes

There are many ways to deal with personal debt disputes, such as negotiation, mediation, arbitration and litigation. As long as they are used timely and appropriately, they will get twice the result with half the effort. .

Among them, if the loan period has expired and the loan has not been repaid after being urged by the lender, the lender can file a lawsuit with the People's Court in accordance with the law and use legal weapons to protect its legitimate rights and interests. Lenders should pay attention to the statute of limitations when suing. According to the General Principles of the Civil Law, the statute of limitations for debt disputes is three years.

In addition, if you go to court to resolve a debt dispute, if there is no direct proof of creditor's rights and debt contract, you can collect the following evidence:

By phone recording, if you mention repayment on the phone, Regarding the money, the other party admitted the fact of borrowing the money. This kind is actually easier to find, because before the relationship between the two people deteriorated, the two parties may have calmly discussed the repayment of the money at the beginning, so it doesn't matter if there is no IOU, so this kind of recording must be collected in time.

By collecting text messages, for example, if the content of the text message mentions repaying money, see if the other party acknowledges borrowing money in the reply. This kind of recording is equivalent to the previous phone recording. It has a certain strength in proving the loan relationship, but it is generally not used as direct evidence to determine the loan relationship. If it goes to court, the content of the text messages will be cross-examined.

Go to the bank to retrieve the withdrawal voucher or transfer voucher at that time. Bank withdrawal or transfer vouchers can prove that there is a money transaction between you, and this kind of voucher is generally easier to retrieve. If you don't remember to save it when transferring money, you can also check it at the bank. Therefore, if you encounter a situation where you have not written an IOU, don’t be anxious. It is crucial to slowly search for things that can be used as evidence.

Find someone who was present to testify. Of course, having someone present when borrowing money is also crucial to prove the relationship between two people.

So, when a personal debt dispute occurs, you can choose a handling method according to your own situation. Usually, you will negotiate first. If the negotiation fails, you can go to court to sue.

How to file a debt dispute lawsuit

1. To confirm what kind of creditor-debt relationship it is

From the perspective of the reasons for its creation, the debt is mainly determined by the conclusion of a contract. In addition, there are also debts for torts, debts for unjust enrichment, debts for unreasonable management, etc. In addition, with the introduction of the guarantee law, debt guarantee is also a legal guarantee for debt performance. There are five types of guarantee: guarantee, deposit, mortgage, pledge and lien. It can be seen that the parties concerned must first confirm which debt relationship they belong to, which is a prerequisite for filing a debt dispute lawsuit.

2. It is necessary to ensure that the creditor-debt relationship is established in accordance with the law

According to Article 85 of the "General Principles of the People's Republic of China and Civil Law": "A contract is established between the parties , change or terminate civil relations. Contracts established in accordance with the law are protected by law. It can be seen that the key to whether the rights and interests of the parties involved in debt disputes can be protected by law is whether the debt relationship is legal and valid.

3. Establish the concept of statute of limitations

In past debt dispute cases, most of the reasons for failure were that the statute of limitations exceeded the statute of limitations. It can be seen that the statute of limitations also determines whether the parties win or lose the case. The statute of limitations stipulated by law means that if the right holder does not exercise his rights within the statutory period, he will lose the right to request the court to force the obligor to perform his obligations according to litigation procedures.

What matters should be paid attention to when handling creditor's rights and debt disputes

A creditor's right is a civil law right to request others to perform certain actions (actions or omissions). Based on the principle of relative rights and obligations, a debt is a debt relative to a creditor, that is, a civil law obligation that must be a certain act (action or omission).

1. Pay attention to the statute of limitations

Article 135 of my country's "General Principles of Civil Law" stipulates: "The statute of limitations for petitioning the People's Court for protection of civil rights is two years." Article 140 stipulates: "The statute of limitations is interrupted by the filing of a lawsuit, a request by one of the parties, or the agreement to perform an obligation. From the time of interruption, the statute of limitations shall be recalculated." For this reason, creditors must pay full attention to this point, otherwise once the statute of limitations expires, the creditor's rights will lose legal protection.

2. Time limit for application for execution

According to the effective legal documents, creditors with rights can request the people's court to enforce execution in accordance with the law when the debtor refuses to perform its obligations. The rights must be exercised within the application period. Article 29 of the "Civil Procedure Law" stipulates: The time limit for "application for enforcement" is one year if both parties or one party is a citizen. "If both parties are legal persons or other organizations, it is 6 months." If the application for enforcement period is exceeded without justifiable reasons, the people's court will no longer enforce it.

3. Pay attention to the guarantee period

Guarantee Law "Article 25 stipulates: "If the guarantor of a general guarantee and the creditor have not agreed on a guarantee period, the guarantee period shall be 6 months from the expiration date of the performance of the main debt." "During the guarantee period agreed in the contract and the guarantee period stipulated in the preceding paragraph, the creditor shall If the debtor has not filed a lawsuit or applied for arbitration, the guarantor is exempted from liability. This means that during the period, the creditor not only requires the guarantor to bear responsibility, but also must file a lawsuit or arbitration against the debtor, otherwise the guarantor is exempted from liability.

4. Collect evidence well

Litigation evidence plays an important role in civil litigation. Only by relying on evidence can creditors prove the correctness and legality of their claims. For this reason, in economic activities, Creditors must pay attention to the preservation of daily documents, documents, various contract texts, various documents, bills, letters and telegrams, and the collection of physical evidence and audio-visual materials such as telephone recordings and fax materials.

After a debt dispute occurs, as a creditor, you should pay attention to collecting relevant evidence in a timely manner, such as loan contracts or IOUs, phone recordings and text messages and emails when collecting debts from the debtor, etc. If the debt dispute cannot be resolved through negotiation, you should be prepared to sue. Prepare and write an indictment. If you don’t know how to write an indictment, you may wish to consult a debt lawyer to avoid unnecessary trouble.