借款合同纠纷解决中应注意的问题Issues to be noted in the resolution of loan contract disputes
(一)借款合同纠纷的产生
借款合同纠纷是指借款合同的双方当事人对借款合同的履行情况及违约责任所发生的争议。就合同履行情况来说，借款合同纠纷是指当事人未完全按照合同的约定履行合同而引起的争议;就违约责任来说，借款合同纠纷是指违约责任该由谁承担及如何承担而引起的争议。
在实践中，借款合同发生纠纷是难免的。从客观情况来看，当事人签订合同后，由于社会环境、自然情况等发生了变化，使当事人履行合同时遇到了意料之外的或难以克服的困难，使合同不能履行或不能完全履行，从而产生纠纷。从主观情况来看，当事人签订合同时，由于法律意识不浓，对合同各条款并不严格、认真、细致地签订，甚至有些当事人想欺诈银行，根本不想履行合同，从而产生纠纷。
借款合同发生纠纷，不仅会影响双方当事人的经济利益，而且还会给社会和国家带来损失。因此，及时、合理、正确地解决借款合同纠纷，不仅有利于借款人维持正常的生产、生活，而且有利于贷款人融通资金，还有利于维护社会生产、生活秩序和金融秩序的稳定。
由于借款合同履行方面的问题与对策在前面已有详述，现仅提供由于违约责任而产生的纠纷及对策。
(二)违反借款合同责任的构成要件
1.当事人要有违约行为
违约行为包括不履行和不完全履行借款合同两种行为。不履行借款合同，是指当事人根本没有按照借款合同约定的条款履行合同义务。不完全履行借款合同是指当事人对借款合同约定的义务只是部分履行，而没有履行借款合同所约定的全部义务。无论是不履行还是不完全履行，都属于违约行为，都应当承担相应的法律后果。
2.当事人主观上必须有过错
当事人主观上的过错，包括故意和过失。故意是指行为人明知自己的行为会发生不良后果，并且希望或放任这种后果的发生。过失是指行为人应当预见自己的行为可能发生不良后果，因疏忽大意没有预见，或因工作上的失误以致发生不良后果。无论是故意还是过失违约，都应承担违约责任。
(三)借款合同中借、贷方违约的具体情形
根据1996年6月28日中国人民银行发布《贷款通则》(1996年8月1日起施行)第六十六条的规定：
贷款人有下列情形之一，由中国人民银行责令改正;逾期不改正的，中国人民银行可以处以5千元以上1万元以下罚款：
(1)没有公布所经营贷款的种类、期限、利率的;
(2)没有公开贷款条件和发放贷款时要审查的内容的;
(3)没有在规定期限内答复借款人贷款申请的。
根据1996年6月28日中国人民银行发布的《贷款通则》(1996年8月1日起施行)第六十七条规定：贷款人有下列情形之一，由中国人民银行责令改正;有违法所得的，没收违法所得，并处以违法所得1倍以上3倍以下罚款;没有违法所得的，处以五万元以上三十万元以下罚款;构成犯罪的，依法追究刑事责任：
(1)贷款人违反规定代垫委托贷款资金的;
(2)未经中国人民银行批准，对自然人发放外币贷款的;
(3)贷款人违反中国人民银行规定，对自营贷款或者特定贷款在计收利息之外收取其他任何费用的，或者对委托贷款在计收手续费之外收取其他任何费用的。
根据《贷款通则》第七十一条的规定：
借款人有下列情形之一，由贷款人对其部分或全部贷款加收利息;情节特别严重的，由贷款人停止支付借款人尚未使用的贷款，并提前收回部分或全部贷款：
(1)不按借款合同规定用途使用贷款的。
(2)用贷款进行股本权益性投资的。
(3)用贷款在有价证券、期货等方面从事投机经营的。
(4)未依法取得经营房地产资格的借款人用贷款经营房地产业务的;依法取得经营房地产资格的借款人，用贷款从事房地产投机的。
(5)不按借款合同规定清偿贷款本息的。
(6)套取贷款相互借贷牟取非法收入的。
根据《贷款通则》第七十二条的规定：
借款人有下列情形之一，由贷款人责令改正。情节特别严重或逾期不改正的，由贷款人停止支付借款人尚未使用的贷款，并提前收回部分或全部贷款：
(1)向贷款人提供虚假或者隐瞒重要事实的资产负债表、损益表等资料的;
(2)不如实向贷款人提供所有开户行、帐号及存贷款余额等资料的;
(3)拒绝接受贷款人对其使用信贷资金情况和有关生产经营、财务活动监督的。
(四)解决借款合同纠纷中应注意的问题
1.选择恰当的解决纠纷的方式
当借款合同发生纠纷时，当事人双方首先应及时协商解决。因为协商解决有利于维护双方的感情，有利于以后继续合作，而且协商解决简便、迅速、耗费少、便于执行，因而是一种常用方法。
如果当事人协商不成，任何一方均可向合同管理机构申请调解、仲裁，也可以直接向人民法院起诉。在利用诉讼方式解决纠纷时，法院一定要及时、正确地审理案件，解决纠纷，不要久拖不决，以减少双方当事人的经济损失，维护国家、社会和公民个人的利益。
2.注意解决借款合同纠纷的期限
借款合同规定的双方当事人的权利和义务应在一定时期内履行，当借款合同出现纠纷时，也应该及时解决。根据《民事诉讼法》的规定，解决借款合同的纠纷有一定期限限制。其期限适用《民法通则》关于一般诉讼时效的规定，即从知道或应当知道权利被侵害之日起两年不向法院请求保护民事权利的，人民法院不予保护其权利。因此，合同当事人，特别是贷款人在借款合同发生纠纷后，要及时解决，不要超过时效限制，使自己丧失胜诉权，从而遭受经济损失。
3.聘请法律顾问，帮助自己解决纠纷
借款合同发生纠纷后，合同当事人可聘请律师参与纠纷解决，给自己出谋划策。因为律师是国家的法律工作者，精通法律，聘请其作自己的法律顾问，能较好地维护自己的合法权益。
4.在担保借款合同中，要注意，如果担保主体发生合并、分立等事项，应由变更以后的当事人承担或分别承担履行借款合同的义务和享受应有的权利。
如果担保主体有两个或两个以上，则按照其担保贷款的数额来确定承担责任的比例，而不应该互相推托，不负责任。
5.借款合同发生纠纷后，一定要通过合法的途径解决，而不要以不合法的手段去处理。
如贷款人不经调查擅自扣除他人贷款，借款人迟延还款或拒不还款，这样做，只能带来更大的经济损失。
（1） The emergence of loan contract disputes
Loan contract disputes refer to disputes arising between the parties to a loan contract regarding the performance and breach of contract responsibilities. In terms of contract performance, loan contract disputes refer to disputes arising from the parties not fully fulfilling the contract as agreed in the contract; In terms of breach of contract liability, loan contract disputes refer to disputes arising from who should bear the breach of contract liability and how to bear it.
In practice, disputes arising from loan contracts are inevitable. From an objective perspective, after the parties sign the contract, due to changes in social environment, natural conditions, etc., they encounter unexpected or insurmountable difficulties in fulfilling the contract, making it impossible or impossible to fully perform the contract, resulting in disputes. From a subjective perspective, when the parties sign a contract, due to a lack of legal awareness, they do not strictly, seriously, and meticulously sign the various terms of the contract. Some parties even want to deceive the bank and do not want to fulfill the contract, resulting in disputes.
Disputes arising from loan contracts not only affect the economic interests of both parties, but also bring losses to society and the country. Therefore, timely, reasonable, and correct resolution of loan contract disputes is not only beneficial for borrowers to maintain normal production and life, but also beneficial for lenders to facilitate fund financing, and also conducive to maintaining the stability of social production, life order, and financial order.
Due to the issues and countermeasures related to the performance of the loan contract, which have been detailed earlier, only the disputes and countermeasures arising from breach of contract liability are provided.
（2） The constituent elements of liability for violating loan contracts
1. The parties shall have a breach of contract
Breach of contract includes two types of behaviors: non performance and incomplete performance of loan contracts. Non performance of the loan contract refers to the failure of the parties to fulfill their contractual obligations in accordance with the terms of the loan contract. Incomplete performance of a loan contract refers to the partial performance of the obligations stipulated in the loan contract by the parties, without fulfilling all the obligations stipulated in the loan contract. Whether it is non performance or incomplete performance, it is a breach of contract and should bear corresponding legal consequences.
2. Subjectively, the parties involved must be at fault
Subjective fault of the parties involved, including intent and negligence. Intention refers to the behavior of a person who is aware that their actions will result in adverse consequences and wishes or allows such consequences to occur. Negligence refers to the fact that the actor should have foreseen the potential adverse consequences of their actions, but did not foresee them due to negligence, or made mistakes in their work, resulting in adverse consequences. Both intentional and negligent breach of contract shall bear the liability for breach of contract.
（3） Specific circumstances of default by the borrower and lender in the loan contract
According to Article 66 of the General Rules for Loans issued by the People's Bank of China on June 28, 1996 (effective from August 1, 1996):
The lender shall be ordered by the People's Bank of China to make corrections in any of the following circumstances:; If it fails to make corrections within the prescribed time limit, the People's Bank of China may impose a fine of not less than 5000 yuan but not more than 10000 yuan:
(1) Failure to disclose the types, terms, and interest rates of the loans operated;
(2) There is no publicly disclosed loan conditions and the content to be reviewed when issuing loans;
(3) Failure to respond to the borrower's loan application within the prescribed deadline.
According to Article 67 of the "General Provisions on Loans" issued by the People's Bank of China on June 28, 1996 (effective from August 1, 1996), if a lender falls under any of the following circumstances, the People's Bank of China shall order it to make corrections; If there are illegal gains, the illegal gains shall be confiscated and a fine of 1 to 3 times the illegal gains shall be imposed; If there are no illegal gains, a fine of not less than 50000 yuan but not more than 300000 yuan shall be imposed; If a crime is constituted, criminal responsibility shall be pursued in accordance with the law:
(1) The lender violates the regulations to advance the entrusted loan funds on behalf of others;
(2) Granting foreign currency loans to natural persons without approval from the People's Bank of China;
(3) The lender violates the regulations of the People's Bank of China by charging any fees other than interest for self operated loans or specific loans, or charging any fees other than handling fees for entrusted loans.
According to Article 71 of the General Provisions on Loans:
If the borrower falls under any of the following circumstances, the lender shall charge interest on part or all of the loan; If the circumstances are particularly serious, the lender shall stop paying the borrower the unused loan and recover part or all of the loan in advance:
(1) Not using the loan for the purpose specified in the loan contract.
(2) Using loans for equity investments.
(3) Engaging in speculative business in securities, futures, etc. using loans.
(4) Borrowers who have not obtained the qualification to operate real estate in accordance with the law use loans to operate real estate business; Borrowers who have obtained the qualification to operate real estate in accordance with the law and engage in real estate speculation through loans.
(5) Failure to repay the loan principal and interest in accordance with the provisions of the loan contract.
(6) Those who take out loans and borrow from each other to obtain illegal income.
According to Article 72 of the General Rules for Loans:
If the borrower falls under any of the following circumstances, the lender shall order correction. If the circumstances are particularly serious or the borrower fails to correct the overdue payment, the lender shall stop paying the unused loan to the borrower and recover part or all of the loan in advance:
(1) Providing false or concealing important information such as balance sheets, income statements, etc. to the lender;
(2) Not providing the lender with all information such as the opening bank, account number, and balance of deposits and loans truthfully;
(3) Refusing to accept the lender's supervision of their use of credit funds and related production, operation, and financial activities.
（4） Issues to be noted in resolving loan contract disputes
1. Choose the appropriate way to resolve disputes
When a dispute arises in a loan contract, both parties should first negotiate and resolve it in a timely manner. Because negotiated resolution is beneficial for maintaining the relationship between both parties, facilitating future cooperation, and is simple, fast, cost-effective, and easy to implement, it is a commonly used method.
If the parties fail to reach an agreement through negotiation, either party may apply to the contract management agency for mediation or arbitration, or directly file a lawsuit with the people's court. When using litigation to resolve disputes, the court must promptly and correctly hear the case, resolve the dispute, and not procrastinate, in order to reduce the economic losses of both parties and safeguard the interests of the country, society, and individual citizens.
2. Pay attention to the deadline for resolving loan contract disputes
The rights and obligations of both parties stipulated in the loan contract should be fulfilled within a certain period of time. When disputes arise in the loan contract, they should also be resolved in a timely manner. According to the Civil Procedure Law, there is a certain time limit for resolving disputes over loan contracts. The deadline is subject to the provisions of the General Principles of Civil Law on the statute of limitations for general litigation, which means that if a person does not request protection of their civil rights from the court for two years from the date of knowing or should have known that their rights have been infringed, the people's court shall not protect their rights. Therefore, the parties to the contract, especially the lender, should resolve any disputes arising from the loan contract in a timely manner and not exceed the time limit, so as to lose their right to win the lawsuit and suffer economic losses.
3. Hire legal advisors to help resolve disputes
After a dispute arises in a loan contract, the parties to the contract can hire a lawyer to participate in the dispute resolution and provide their own advice and advice. Because lawyers are legal professionals of the country, proficient in the law, hiring them as their own legal advisors can better protect their legitimate rights and interests.
4. In the guarantee loan contract, it should be noted that if the guarantee subject undergoes merger, division, or other matters, the parties after the change should bear or respectively assume the obligations and enjoy the rights to fulfill the loan contract.
If there are two or more guarantors, the proportion of liability should be determined based on the amount of the guaranteed loan, rather than relying on each other or being irresponsible.
5. After a dispute arises over a loan contract, it must be resolved through legal means rather than through illegal means.
If the lender deducts someone else's loan without investigation, and the borrower delays or refuses to repay, this will only bring greater economic losses.