China: 刘哲律师代理的二审民间借贷纠纷获重大有利改判

Last Updated: 13 August 2019
Article by King & Capital Law Firm

案件基本事实:2009年11月1日,北京张某某向河北郭某某出具借条,约定借款金额60万,借期1年,2009年11月1日至2010年10月29日,年利率18%,每月22日先付利息6000元,存入郭某某工商银行卡;2010年8月3日,张某某又向郭某某出具借条,约定借款金额20万元,借条上未约定利息,2011年3月28日归还。

借款到期后郭某某多次催要,张某某没有归还。2018年郭某某向涿州市人民法院起诉,请求偿还80万元本金及利息。开庭时被告张某某及其一审代理律师辩称,借款行为存在,但对原告主张的金额不认可,案件审理过程中,原告向法庭出示借条两份、部分银行汇款凭证及明细、证人孟某某证言、索要借款的短息截图、与张某某谈话录音两份等证据。经过法庭调查质证,一审法院认为,张某某从郭某某处共借款80万元,其中对60万元借款约定年利率18%(月息1.5%)符合法律规定,双方借款关系事实清楚,合法的借贷关系应当受到法律保护,判决张某某于判决生效后十日内偿还原告郭某某款项80万元及利息(其中60万元按月息1.5%计算,20万元按人民银行同期贷款利率计算)。

张某某不服一审判决,二审委托刘哲律师代理,向保定市中级人民法院提起上诉。刘哲律师接受委托后,对案件事实和证据进行全面审查,多次和委托人进行沟通,调取一审庭审记录,针对事实和证据存在的疑点,找到案件突破口,制定可行代理方案。庭审中刘哲律师紧紧抓住一审对60万元借条存在事实认定不清,相关证据之间存在重大矛盾,结合借款资金的来源和构成、实际转款凭证、证人证言存在的不合理性、出借人的经济实力等重大疑点展开充分的说理和论证,说服二审法官采纳上诉理由和观点。

2019年5月保定市中级人民法院作出终审判决,判决上诉人张某某在判决生效后十日内偿还郭某某款项35万9千元及利息。二审改判极大维护了委托人张某某的合法权益。

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