The debts signed by both spouses or the husband and wife of the husband and wife, and the debts of the spouse, and the debts of the spouses who are responsible for the daily life needs of the family during the marriage period shall be deemed as the joint debt of the husband and wife; The debts incurred by the individual in the name of the family beyond the daily life of the family are not the joint debt of the husband and wife, but the creditor can prove that the debt is used for the husband and wife to live together, co-produce or operate, or based on the common meaning of both husband and wife.
In August last year, when the Fifth Session of the Standing Committee of the 13th National People’s Congress first reviewed the draft Civil Code of Marriage and Family, the “24 Public Welfare Group” group leader Li Xiuping and group friend Fang Hui (a pseudonym) have been calling for the new law of Article 24 of the Marriage Law. Explain the law. At the eleventh meeting of the Standing Committee of the 13th National People’s Congress held at the end of June, the second review draft of the draft Civil and Family Code of the Civil Code finally reached their wishes, but they were not happy.
Although they used to be one of the promoters of the new judicial interpretation of Article 24, they sent a letter to the National People’s Congress Standing Committee, which boosted the introduction of the new judicial interpretation of Article 24, but they found that “Article 24 New Judicature There are still loopholes in the explanation, so I hope that the husband and wife debt rules determined by the Civil Code can block the loopholes. Fang Hui told the Beijing News reporter that “others have called us ‘Lai Lai’ because they were “in debt” and were executed on the letter of loss. The list of people, we know how painful this process is, so we look forward to less of our ‘old Lai’.
“What do I don’t know, how can I prove it?” Fang Hui is still playing five civil loan disputes. She is a defendant in five lawsuits. “It’s only 5 now, it’s much less. I didn’t know it three years ago. How many lawsuits the defendant himself is, only knowing that he is carrying a huge debt of 3.04 million yuan.”
Fang Hui originally operated a small family hotel with stable income. However, one day in July 2016, I suddenly received a subpoena from the court, only to know that the ex-husband who had been suspected of illegally raising funds to “run the road” borrowed money. The creditor claimed that the debt was generated before her divorce and asked her to repay it. Then, the court summons flew like a snow flake, and she found that the debt quickly grew to 3.04 million. “The whole person collapsed, and I thought I would die.”
She began to run the court life every day, but almost all the lawsuits lost. Until the introduction of the new judicial interpretation of Article 24 in January 2018, finally ushered in a turning point. “Some courts won the case, and the court finally found that I was a party that was ‘debt’ and did not repay the responsibility. There is still a lawsuit lost. I am very Oddly, the evidence I gave to the court was the same. Why did some win the case and some lost? There are problems in this. The judge always asked me to prove that the money borrowed by the ex-husband was not used for the daily needs of the family. According to my evidence I will presuppose it. I don’t know how these debts come. What do I don’t know, how can I prove it?”
You valued the director of the Marriage and Family Law Professional Committee of the Guangdong Lawyers Association, who participated in the legislative review of the Marriage and Family Code of the Civil Law Code of the Standing Committee of the National People’s Congress. He told the Beijing News reporter that Fang Hui’s dilemma lies in the fact that for the “debt for the daily needs of the family in the name of the individual”, the new judicial interpretation of Article 24 does not clearly bear the burden of proof. “This is the 24th. The first major problem in the new judicial interpretation.”
Article 24 The second article of the new judicial interpretation stipulates that “a party shall claim the rights of the family’s daily life in the name of the individual during the marital relationship, and the creditor shall claim the rights on the grounds of the joint debt of the husband and wife, and the people’s court shall support it” . On the basis of this, the second draft of the Civil Code Marriage and Family Draft was also proposed. “The debts that a spouse has in the personal life of the husband and wife in the name of the family’s daily life should be recognized as the joint debt of the husband and wife.”
“How to identify ‘the debts that are needed for the daily life of the family’? Who will prove it? Or is it just the judge’s free testimony? This is very important,” said You Long, according to the logic of the above terms, “for the family” The daily debts that need to be taken “can directly identify the joint debt of the husband and wife, then, who should identify it?” By the judge. However, the judge’s determination should also be based on the evidence of the parties before an accurate judgment can be made. Without the burden of proof of the parties, no one has to give evidence, and the judge cannot give an accurate identification. If only based on the judge’s free testimony, it is a big problem to rely solely on the amount of debt and the use of the source to determine whether it is a daily life requirement of the family.
For example, he said that a husband and wife each has a total income of 10,000 yuan per month. One day, the husband separately borrows 5,000 yuan for gambling. Both the creditor and the husband insisted on the daily life of the family, and the wife said that it was not used for daily life of the family. In this case, if the amount is based solely on the amount, the judge may think that the amount is not large and is considered to be “for the daily needs of the family. The debt” is handled directly as a joint debt of the husband and wife.
Therefore, he believes that the civil code marriage family code must clarify the burden of proof for “the debts of the family’s daily needs”, “according to the basic principle of the civil litigation ‘who advocates who to prove’, because the creditor or husband’s claim is ‘for the daily life of the family Life needs to bear the debt ‘, then the creditor or husband should bear the burden of proof.”
On the second day of the draft of the Civil Code of Marriage and Family of the Second National People’s Congress Standing Committee, Wang Liren, a member of the Chinese Marriage Law Society, received a letter of help from a woman. Wang Liren has served as the presiding judge of the marriage and family collegiate bench for more than ten years. He has seen many “debt” parties, but he is still touched by the woman’s story and the evidence sent.
The woman said that four years ago, she was in a short-term three-month swindling of private loan lending, only to find that before the divorce, the husband spent a huge amount of “debt” in five months, not interest, the principal The total is close to 4 million. She transferred the bank’s water and found that the debts were suspicious. For example, the biggest one was that the “borrowing” was transferred to Zhang’s account by the ex-husband on the day of the account. “Coincidentally, Zhang and the creditors are the same. Shareholders of the company. She suspected that her ex-husband had colluded with others and caused her to carry huge debts, but the court still decided that she would repay it together because the debts occurred during the marriage. She went to the list of untrustworthy executors, and the real estate cars were forced to auction, and the business had to close.
After the introduction of the new judicial interpretation, she filed a retrial, but the case has passed the retrial period. More importantly, she cannot prove the evidence approved by the court to prove that the huge debt borrowed by her ex-husband was not used in the daily routine of the family. daily needs. In the letter, she asked Wang Liren, “What should I do next? Please ask Judge Wang to help me.”
“There are still many parties who are ‘in debt’,” said Wang Liren. Because the burden of proof is unclear, in judicial practice, many judges believe that “the debts that are needed for the daily life of the family”, the creditors only need to prove the creditor-debtor relationship. Existence, the debt is in line with the daily life of the family as generally believed, and there is no need to prove that the debt is used for the daily life of the family; if the spouse of the debtor refutes and believes that it is not a common debt, then the spouse will prove it.
“However, how did the uninformed spouse participate in the debt settlement?” said Wang Liren, the above-mentioned concept of the judge led to a problem—small-scale presumption, as long as the small amount of debt meets the local daily life range of the family. It is presumed to be a common debt. In the eastern province, a high court issued a regulation, and debts of less than 200,000 yuan were all recognized as joint debts of husband and wife. As a result, the province’s small lending companies advertised, “loaning 200,000 yuan, no need to sign a spouse.” “The small-scale presumption theory has a big problem, and it may become the ‘funnel’ of large-value borrowing. The borrower may adopt the method of “reconstruction to zero”, maliciously borrowing money multiple times, and then giving it to the spouse.”
Wang Liren believes that compared with Article 24 of the Marriage Law, the new judicial interpretation of Article 24 has made great progress. “We cannot expect a judicial interpretation to solve all problems. However, in the legislative process of civil code marriage and family, the husband and wife should be The debt rules have been more thoroughly designed to clarify the burden of proof for the needs of the daily life of the family. This is a problem that must be faced in the civil code marriage and family.
Last month, Fang Hui’s property was forcibly auctioned because of a losing lawsuit. She said that this property was bought by her father in the 1990s. The property owner originally had her own name. She did not know when her ex-husband became a co-owner. When the agreement was divorced, she asked for the suite. The ex-husband took another suite and a car.
She clearly remembers every word on the verdict. Although the court found that she did not actually borrow money and did not sign the loan, the People’s Mediation Agreement showed that when divorced, she divided the property belonging to the joint property of the husband and wife. Moreover, she did not provide strong evidence that during the existence of the marriage relationship, she had sufficient personal income sources to purchase the property; she issued evidence of the father’s contribution to the purchase, and the court did not accept the letter because she had two brothers. Therefore, the court held that the property was purchased by the ex-husband during the marriage period and was paid for by the operating income. When she was divorced, she was divided into her. She should be responsible for the joint repayment of the debts of the ex-husband.
“The creditor has another evidence against me. The name of a company that my ex-husband had opened has my name. Although I don’t know where the company is, the court still thinks that I am involved in the business activities of the ex-husband. At the moment of receiving the judgment, I asked the judge, is this the ‘debt of joint production and operation’?” Fang Hui said, on the day of auctioning the property, “I can only let myself lie in bed and calm down. Accepting the reality, the old father left a few years ago, and now the legacy he left for me is gone.”
Article 24 The third section of the new judicial interpretation stipulates that: If a spouse exceeds the debts of the family’s daily needs in the name of the individual during the marital relationship, the creditor shall claim the rights on the grounds of the joint debt of the spouses, and the people’s court shall not support it, but The creditor can prove that the debt is used for the husband and wife to live together, co-produce or operate, or based on the common meaning of both spouses. The same draft is also used in the second draft of the Civil Code Draft Marriage and Family Draft.
“What is the joint production and operation of husband and wife? It is very controversial in judicial practice, and the ambiguity is not small.” You valued the dragon. Because of the problem of definition, some so-called “co-production and management of the husband and wife” is not used for husband and wife. Living together, leading to uninformed, unfamiliar spouses “debt” situation continues to emerge. In practice, such cases have emerged. For example, if the creditor and the borrower agree in the contract that the debt is used for the operation of the debtor, the court directly determines that the husband and wife jointly produce and operate the debt;
Before the debtor used the business income for family life, and later borrowed a large amount of money, regardless of whether the debt was actually used for business, it was directly recognized as the joint production and operation of the husband and wife; in the operation of the debtor company, as long as the company’s shareholders or management The name of a spouse of a person or ordinary employee is just like Fang Hui, and it is directly recognized as a bond for the joint production and operation of the husband and wife. You valued Long believes that “the bond of joint production and operation of husband and wife” has become an excuse and reason for the debtor to damage the interests of the uninformed and not benefiting the spouse.
“A husband has opened a self-employed department. In the past few years, he has used tens of thousands of yuan of operating income every year for family living expenses. In the last two years, he has borrowed millions of yuan and tens of millions of yuan, and wrote in the loan contract. Used for self-employed’, but actually used for gambling, drug use, and fostering a second wife; a husband who stole his wife’s identity card when registering a company, and set his wife as a shareholder or nominal manager, director, supervisor, employee Then, in the name of business, a large amount of debt is used for gambling, drug use, and raising a second wife. According to the theory of ‘bonds of husband and wife joint production and operation’, these debts will be recognized as joint debts of husband and wife.
Such cases continue to emerge, indicating that the so-called ‘cohabitation of husband and wife joint production and operation’ has become a ‘big pit’ for the debtor to harm the uninformed and unprofitable spouse’s interests.” You valued the dragon, saying that there is no accurate and scientific definition of what is “ In the case of joint production and management of husband and wife, it is very dangerous to directly include the debts of “co-production and management of husband and wife” that are extremely controversial in practice.
Ma Xianxing, the chief procurator of the People’s Procuratorate of Yuhua District, Changsha, served as the president of the grassroots court for 10 years and had contacted a large number of cases of husband and wife debt. In an interview with the Beijing News reporter, he also said that “the joint production and operation” must be strictly limited, that is to say, the husband and wife must actually “commonly engage in production and management activities”.
For example, rural contracted businesses, small shops and small workshops operated by urban couples, or both husband and wife have assumed specific positions in the company. “Common production and management must be given a clearer definition, especially in information and networks. In modern society under the conditions of production and living, it is extremely convenient to know and confirm, and it is not possible to generalize and expand the interpretation of ‘common’. For example, when a spouse establishes a company, its spouse only appears in the relevant written documents of the company. The name, or only the nominal ‘shareholder’, without actually participating in any production and business activities, can not be judged as ‘common production and operation’. If simple referee, it is easy to cause wrongful cases.”
On June 26, when the eleventh session of the Standing Committee of the 13th National People’s Congress examined the draft of the Civil Code of Marriage and Family, some members also held the same view. Commissioner Wang Yimeng proposed that “the creditor can prove that the debt is used for the husband and wife to live together, to jointly produce and operate, or to express it based on the common meaning of both husband and wife.” The “common production and operation” should be considered more carefully. “What is common?” Production and management? It is easy to be ambiguous in real life. If there is no accurate and scientific definition, it will be the premise of the joint debt of the husband and wife. In practice, there will be many problems, especially it is easy for the husband and wife to know neither. Love, there is no debt to benefit.”
Fang Hui often sees a sentence in his multiple judgments. “Legal private lending relations are protected by law and debts should be paid off.” “The law must protect the rights and interests of creditors. I understand and support it. The problem is that protecting the rights and interests of creditors cannot be at the expense of the interests of good-willed people.”