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Some enterprises borrow money in the name of employees in the case of operational difficulties or obstacles in direct financing. Similar situations include the company asking employees to guarantee loans, the company asking employees to act as shareholders or legal representatives in name, and the company borrowing loans through employee accounts. After this kind of dispute is brought to court, it is often difficult to judge the actual borrower only by the flow of money because of the complexity of the case, and employees’ rights protection faces difficulties.
Enterprises find employees for help, saying that borrowing in the name of employees can bring enterprises back to life and pay wages. Borrow or not?
Yangliu chose to borrow. But things didn’t go as she expected. Soon after, the business was abnormal, and Yangliu had to help the company repay the loan of nearly 300,000 yuan.
Some enterprises sometimes borrow money in the name of employees when they have difficulties in operation or encounter obstacles in direct financing. Once a dispute occurs, it may cause serious damage to the interests of employees. Meng Yuping, a legal expert of Liaoning Labor and Personnel Dispute Research Association, reminded workers that although enterprises and employees are a community of interests and should share weal and woe, they should be clear about the corresponding legal risks and pay attention to safeguarding their legitimate rights and interests.
Employees borrow online loans to tide over difficulties for enterprises.
37,926 yuan, which is the total amount of online loans that Yangliu has to pay back every month.
Yangliu is a lecturer in an education and training institution in Dalian, working for 7 years. Since June 2020, the company’s capital chain has been broken and wages cannot be paid. Under the persuasion of the person in charge of the company, she borrowed nearly 300,000 yuan from online lending platforms such as Alipay Online Commercial Loan, Huayuan, Jingdong Finance and 360 IOUs in her own name to maintain the company’s operation. There are still five old employees who borrowed like her.
"No matter how difficult the company is, it will definitely guarantee the repayment of old employees." The person in charge of the training institution said. In January 2021, the person in charge told Yang Liu and others that they needed to find their own way to repay the loan. "It has been overdue for two months, my credit information has been damaged, and the calls for debt collection have been made to my parents’ homes." Yang Liu said that she is 36 years old and has two children at home. The monthly repayment is overwhelming her.
In March this year, several employees signed a loan agreement with the company, making it clear that the company would pay the corresponding amount for repayment every month. But the company stopped after only two months of payment.
"I joined this company just after graduation, and the boss is also very good to our employees. All the benefits are available." Yang Liu believes that she has a deep friendship with the enterprise and is willing to tide over the difficulties together.
Meng Yuping said that it is difficult to win the case that such employees help enterprises borrow money with their true will. "Employees are all people with full capacity for civil conduct. If they sign a word and borrow money, they will be responsible for their actions and bear the corresponding legal risks."
In reality, it is difficult to judge whether an enterprise borrows money in the name of employees. In June 2019, Zhang Zhuangye and others lost the case in the second instance. Since March 2016, Zhang Zhuangye and others have borrowed more than 2 million yuan in their own names and transferred them to the company account. The company agreed to give Zhang Zhuangye and others an annual interest of 10%. At the same time of many transfers, some loans were left as bonuses in the accounts of Zhang Zhuangye and others.
After trial, the local court held that Zhang Zhuangye made a profit by borrowing interest, and at the same time did not transfer all the loans to the company for use. It was impossible to prove that the company borrowed in the name of employees, so Zhang Zhuangye and others lost the case.
The reporter learned that there are similar situations in which the company borrows money from employees to guarantee, the company makes employees "nominal" as shareholders or legal representatives of the company, and the company borrows loans through employee accounts … … There are many cases of transferring the loan risk to employees.
The point of dispute is "whether it is true will"
Article 11 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases (hereinafter referred to as the Provisions), which came into effect on January 1, 2021, stipulates that if a legal person or an unincorporated organization raises funds from employees in the form of loans for the production and operation of the unit, and there is no illegal act, if the parties claim that the private lending contract is valid, the people’s court shall support it. It is not illegal for an enterprise to borrow money from employees for business operation, so "whether employees really want to borrow money to help the enterprise" has become the controversial point of this kind of dispute.
"I didn’t agree at first, until we said we wanted to transfer posts, and we nodded one after another." Zhang Zhuangye said. As employees of the enterprise, in order to keep the "rice bowl", we have to agree to the requirements of the enterprise.
In the course of the lawsuit, the company took out the "share agreement" of Zhang Zhuangye and others, claiming that they transferred the money to the company for "share participation" and there was also a "bonus" to pay dividends. Zhang Zhuangye found that the agreement had its own signature every time. "The enterprise said it was necessary for financial transfer, and I didn’t read it carefully at all." Zhang Zhuangye said.
Zhang Zhuangye’s son is in the second grade of junior high school, and his wife does odd jobs at home. His monthly family income is 9,000 yuan, his existing family savings are 540,000 yuan, and his own house is valued at nearly 1 million yuan. After it was difficult to prove that he was not really willing to borrow money, at the second trial, Zhang Zhuangye appealed on the grounds that he obviously did not have the ability to lend. After trial, the court held that whether to borrow or not has nothing to do with the current economic situation, and banks can borrow or not if they have deposits. At the same time, it is difficult to prove that Zhang Zhuangye obviously does not have the ability to lend.
Article 18 of the Regulations makes it clear that when people’s courts try disputes over private lending, they should strictly examine the reasons, time, place, source of money, delivery method, flow direction of money, the relationship between borrowers and borrowers, economic situation and other facts, and comprehensively judge whether it is a false civil lawsuit.
A judge who often hears such disputes in Shenyang said that in reality, such disputes are often complicated, and it is not possible to judge whether the actual borrower is an enterprise or an employee only by the flow of funds. She often heard that many employees who were borrowed said in court trials, "I borrowed from myself, but I didn’t spend a penny. Why should I help repay the loan?" The judge believes that this kind of defense is difficult to be supported by facts.
Employees should safeguard their legitimate rights and interests.
"What I am most worried about is that my son’s college entrance examination and employment will be affected in the future." Zhang Zhuangye’s wife said. Their family has borrowed nearly 300,000 yuan, and now the overdue interest totals more than 500,000 yuan. "if you really fill in the deposit, it feels too unfair."
Yang Liu said that if the company fails to repay the loan in June, they will file a lawsuit. Wang Jinhai, a resident expert lawyer of Dalian Public Legal Service Center, suggested that Yang Liu and others can take "private lending" as the cause of filing a case, seek civil judicial relief, and fix the creditor’s rights by litigation. If the company refuses to perform the judgment, it can apply to the court for enforcement. If there is evidence to prove that the company lets employees borrow money by fictional facts or concealing the truth, with the purpose of illegal occupation, this situation of defrauding others’ property may be suspected of criminal fraud, and Yang Liu and others may also report the case to the public security organ.
How should employees protect their legitimate rights and interests in the face of corporate loans? The above-mentioned judge said that if the loan has not started, the employee should take the initiative to negotiate with the enterprise to refuse. If the enterprise threatens to adjust the post and reduce the salary, it can complain to the labor inspection brigade; If you have borrowed or are borrowing, no matter whether you borrow as an employee or not, as long as the money flows to the enterprise, you must sign an iou, and at the same time standardize the contents of the iou, including the purpose of borrowing, borrowing method, borrowing amount, interest agreement, borrowing period, etc., and also leave a copy of the actual borrower’s ID card, payment voucher and other evidence.
Wang Jinhai said that employees can ask the debtor to provide security of property rights, keep the records of WeChat, telephone, SMS and recording that the debtor agreed to perform, and then apply for arbitration or bring a lawsuit to the court through an arbitration institution.
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