A reporter asked: Properly handle cases involving disputes between husband and wife. Equal protectio

A reporter asked: Properly handle cases involving disputes between husband and wife. Equal protection of the legitimate rights and interests of all parties according to law

 

Source: Supreme People's Court Network

 

On January 17, the Supreme People's Court issued the "Interpretation of Issues Concerning the Application of Laws in the Trial of Cases Concerning Disputes on Husband and Wife" (hereinafter referred to as "Explanation"). With regard to the background and main content of the interpretation of the Interpretation, the reporter interviewed the person in charge of the People's Court of the Supreme People's Court.

Question: Since 2001, the Supreme People's Court has issued three judicial interpretations on the application of the Marriage Law. Why should this Interpretation be formulated?

A: After the implementation of the revised Marriage Law in 2001, the Supreme People's Court enacted three judicial interpretations of the Marriage Law in 2001, 2003, and 2011 respectively, a total of 82 articles, and the judicial interpretation of the Marriage Law in February 2017 (2) Four provisions have been added. These judicial interpretations provide for a number of issues concerning the relationship between husband and wife and the law applicable to property relations. In recent years, with the rapid development of China's economy and society, the property structure of urban and rural residents has undergone great changes. The social public's concept of marriage and family and family investment channels have become increasingly diverse. Many families' wealth has grown rapidly, resulting in debt arising from investment. The risks are also constantly expanding. In real life, the couples colluded with the “pit” creditors, or the spouses and the creditors colluded with the typical case of “the pit” and other typical cases. These factors are superimposed on family life, making the identification of husband and wife debts a very complicated issue, and the difficulty of the people's courts in dealing with cases involving husband and wife debts has increased. Although the original law and judicial interpretation have formed a relatively complete system, it prevents the couples from colluding with the interests of the creditors and the risk that the spouse and the third party collude to harm the interests of the other party, but the joint debt identification standard and the burden of proof The problems of other aspects have still not been fundamentally resolved and have become a widespread concern of the society.

In order to solve outstanding problems in judicial practice, actively respond to social concerns and meet the judicial needs of the broad masses of the people, the Supreme People's Court seriously summed up the practical experience of trials, repeatedly investigated and demonstrated and extensively solicited opinions, and formulated and promulgated this Interpretation. The Interpretation further refines and perfects the joint debt identification standards for couples, rationally distributes the burden of proof, and guides civil commercial entities to regulate trading behaviors, strengthen pre-existing risk prevention, and balance the protection of the legitimate rights and interests of all parties.

Question: The interpretation of "Explanation" emphasizes the principle of "co-debt co-signing" when the joint debt of the husband and wife is formed. What is the purpose and significance?

A: According to the general principles of civil law, the principle of autonomy of will and the principle of equality of marital status as stipulated in the Marriage Law, after marriage, men and women cannot deny the independent personality and independent civil subject status of both spouses. Even if the husband and wife property is shared after marriage, the debt of one party is special. It is a large debt that exceeds the daily needs of the family. It should also be agreed with the other party, or used for the husband and wife to live together. Otherwise, it cannot be recognized as a joint debt of the husband and wife.

The first article of the Interpretation clearly emphasizes the principle of “co-debt co-signing” when the joint debts of the husband and wife are formed. It clearly and emphasizes the debts signed by both spouses or the after-recognition of the spouses and the debts of other common meanings. debt. This provision is intended to guide creditors in the formation of debts, especially large debts, in order to avoid unnecessary disputes afterwards, strengthen pre-risk prevention, and require couples to sign as much as possible. On the one hand, this kind of institutional arrangement is conducive to guaranteeing the right of the other party's right to know and consent. It can prevent the “party debt” phenomenon of the spouse from the source of debt formation; on the other hand, it can effectively avoid the creditor’s after-effects. Unable to prove that the debt belongs to the joint debt of the husband and wife and suffer unnecessary losses is of positive significance for the security of the transaction and the legitimate rights and interests of the husband and wife. In practice, many commercial banks generally require both husband and wife to sign together when handling loan business. If one party does not have a special reason to be present in person, it must also submit a notarized power of attorney, otherwise it will not be loaned. This operation minimizes the risk of debt insolvency, protects the legitimate rights and interests of creditors, and does not cause Damage to the rights of a spouse. The principle of “co-debt co-signing” has realized the organic connection between the marriage property husbandry property system and the contract law relativity principle.

Although it is required that the husband and wife “co-debt co-signing” may affect the transaction efficiency, when the creditor’s debt relationship is formed and the certain transaction cost is increased, and the spouse’s right to consent is conflicted, the right of consent of the spouse’s right to know, It is related to the basic legal principles of equal status, autonomy of will and the personal rights of citizens' basic property rights, so it should be given priority. In fact, an appropriate increase in transaction costs is not only conducive to the security of transactions, but also can reduce disputes afterwards and fundamentally improve transaction efficiency. Article 1 of the Interpretation stipulates that within the scope of the current Marriage Law, the realization of the protection of the legitimate rights and interests of creditors and the protection of the legitimate rights and interests of one of the spouses constitutes the "maximum common denominator" of the protection of the rights.

Q: How do you understand the debts you need to live in your daily life?

A: The so-called "family daily life" is called everyday housework. In the civil law and marriage law circles, I believe that marriage is a community of husband and wife life. In the context of dealing with the daily affairs of the family, husband and wife are agents of each other. This is the natural effect of marriage and is a legal agent. Although the Marriage Law does not clearly stipulate the daily family agency system, it can be concluded from the relevant provisions that the husband and wife are agents in the daily life of the family. Article 17, paragraph 2, of the Marriage Law stipulates that “a husband and wife have equal rights to deal with jointly owned property”. The right to equal treatment referred to here includes both the treatment of positive property and the treatment of negative property, debt. Judicial Interpretation of the Marriage Law (1) Article 17 stipulates: “The husband or wife’s rights in dealing with the joint property of the husband and wife are equal. Any party that has the joint property of the husband and wife due to daily life needs to have the right to decide.” The substantive content of the husband and wife's daily family agency rights. Therefore, in the case where the husband and wife have not agreed on the separate property system or the agreement but the creditor does not know, the debt that the spouse has in the personal name for the daily life needs of the family shall be deemed as the joint debt of the spouse.

According to the statistics of the National Bureau of Statistics, the consumption categories of urban households in China are mainly divided into eight categories, namely food, clothing, household equipment and maintenance services, medical care, transportation and communication, cultural and educational education and services, housing, other goods and services. . The scope of daily life of the family can be referred to the above-mentioned eight categories of household consumption, and is determined according to the state of the husband and wife living together (such as the occupation, identity, assets, income, interest, family size, etc.) of the couple and the local general social living habits. However, rural contracted households have their own particularities. Rural contracted households generally use households as their unit. Household daily life and contractual management are often intertwined. It is difficult to distinguish them strictly. Therefore, in order to bear the debts of normal contracting operations, it can be determined. Debt for the daily needs of the family. It should be emphasized that the expenditures required for daily life of the family refer to the daily consumption of the family, which is usually necessary. It mainly includes normal food and clothing consumption, daily necessities purchase, child support education, and old-age support. It is to maintain a normal family life. The necessary expenses. Of course, with the continuous development and changes of China's economy and society, people's family values, and family lifestyles, it is also necessary to change with the changes in society when it is determined whether it is a household daily expenditure.

Q: How do you understand the joint debts of couples outside the daily life of the family?

A: With the development of China's economy and society, the property structure, type, quantity, form and financial management mode of urban and rural residents have undergone great changes. People's living standards have been continuously improved, and their daily consumption has become more diversified. Many couples' living expenses are not It is limited to the traditional consumption expenses of daily households, and also includes a large amount of expenditures beyond the daily life of the family. These expenditures are the common consumption of the husband and wife, or are used to form the joint property of the husband and wife, or to manage the joint property based on the common interests of the husband and wife. Expenditure, in nature, falls within the scope of the husband and wife living together. The debts claimed by the creditors in Article 3 of the Interpretation need to prove that the debts used for the husband and wife to live together refer to the debts of the above-mentioned couples who live beyond the daily life of the family.

The situation of joint production and management of husband and wife is more complicated, mainly refers to the case where the husband and wife jointly decide the production and management matters, or the situation is decided by one party but the other party authorizes. Judging whether the production and operation activities belong to the joint production and management of the husband and wife, it is necessary to comprehensively determine the nature of the business activities and the role of the husband and wife in them. If a husband and wife engage in commercial activities, the provisions of the company law, contract law, partnership law, etc., and judicial interpretations shall apply as appropriate. The debts incurred by a husband and wife in joint production and operation generally include the debts incurred by both parties in business, business, joint investment, and purchase of production materials.

Q: How does the burden of proof in a case involving a joint debt dispute between husband and wife?

A: The first three articles of the Interpretation respectively stipulate the common debts of the husband and wife, the joint debts of the husband and wife in the daily life of the family, and the joint debts of the husband and wife that the creditors can prove, but from the perspective of the burden of proof They can be divided into two categories: one is the common debt of the family's daily life; the other is the common debt that exceeds the daily life of the family. For the former, in principle, it is presumed to be a joint debt of the husband and wife, and the creditor does not need to prove the evidence; if the spouse of the debtor retorts that it is not a joint debt of the husband and wife, the proof of the debt is not used for the daily life of the family. For the latter, although the debt is formed during the existence of the marriage relationship and the joint property system of the husband and wife, it is not normally recognized as the joint debt of the husband and wife; if the creditor claims to belong to the joint debt of the husband and wife, it should be based on the 60th law of the Civil Procedure Law. Four provisions of the "party's claim to itself, the responsibility to provide evidence", the proof that the debt belongs to the husband and wife living together, the joint production and operation of the debt, or the debt is based on the common meaning of the husband and wife. If the creditor cannot prove it, it cannot be considered as a joint debt of the husband and wife.

What needs to be pointed out here is that the common meaning of the first article of the Interpretation indicates that the joint debts of the husband and wife are the same as those of the creditors who need to prove that the debts are based on the common meaning of both husband and wife. The loan contract, the borrowing data signed by both husband and wife, and the subsequent identification of the husband and wife or telephone, text message, WeChat, mail and other evidences embodying the meaning of the common debt are precisely the strong evidence that the creditor used to prove that the debt is the joint debt of the husband and wife. Whether the above distinction is a distribution rule of different burdens of proof of proof for the formation of debts in the daily life of the family effectively solves the problem of the current disputed protection of the rights and interests of creditors and the protection of the rights and interests of unmarried couples.

Question: How does the legal system prevent the spouses from colluding with the creditors, or is the spouse colluding with the creditors to damage the other party?

A: Prevent the risk of collusion between the spouses and the creditors, and the legal and judicial interpretations. For the individual debts of husband and wife, Articles 52 and 74 of the Contract Law stipulate that the division of property between the husband and the wife in the agreement, transfer or divorce of the property is obviously not conducive to the borrowing party, resulting in the inability of the borrowing party to repay the debt. In the case, the creditor may claim that the agreement is invalid or revoked from the people's court. For the joint debt of husband and wife, this Interpretation further refines the criteria for determining the joint debt of husband and wife on the basis of Article 24 of the Judicial Interpretation of Marriage Law (II), that is, the common meaning of the husband and wife is the debt they are responsible for, and the party is the daily routine of the family. The debts that life needs to bear, one party needs to borrow more than the daily life of the family, but the creditors can prove that the debts used for the husband and wife to live together or jointly produce and operate should be recognized as the joint debt of the husband and wife. In conjunction with this Interpretation, the Judicial Interpretation of the Marriage Law (2) Articles 25 and 26 stipulates that if the party separates the property of the spouse at the time of divorce or the spouse dies, the creditor still has the right to the joint debt of the spouse. Claim rights to both men and women or to the surviving party. The above laws and judicial interpretations woven the first French law network, preventing the couples from colluding with the risk of harming the interests of creditors and protecting the legitimate rights and interests of good-will creditors.

Preventing the risk of a spouse colluding with a creditor to harm the interests of the other party is also regulated by law and judicial interpretation. Articles 13 and 17 of the Marriage Law stipulate that the husband and wife have equal status in the family and have equal rights to deal with the property jointly owned, indicating that the husband and wife should share the important matters such as the disposal of common property including a large amount of debt. Decide. The Supreme People's Court issued the Supplementary Provisions on Judicial Interpretation of Marriage Law (II) issued on February 28, 2017 (hereinafter referred to as the “Supplementary Provisions”), clarifying that false debts and illegal debts are not protected; and issuing the “Supreme People’s Court” to the National Court of Justice. Notice on Properly Handling Issues Concerning Couples' Debt Debt Cases (hereinafter referred to as the “Notice”), emphasizing the principle of combining the rule of law and the rule of virtue in the trial of cases involving husband and wife debts, guaranteeing the litigation rights of unnamed couples, and reviewing the debts of husband and wife Whether it is true, distinguishing between legal debts and illegal debts, grasping the criteria for determining the debts of husband and wife at different stages, protecting the basic survival rights of the two parties, and imposing a false lawsuit against the third party to collude with the forged debts, It is of great significance to discriminate judicial practice and eliminate illegal debts and false debts. On the basis of the Supplementary Provisions and the Notice, this Interpretation further clarifies the scope of the joint debt of the husband and wife and reasonably distributes the burden of proof. The above law and judicial interpretation secretly weaved the second legal network to prevent the risk that the spouse colludes with the creditor to damage the interests of the other party, and avoids the risk that the spouse is “in debt” without knowing or benefiting, and protects the unfunded debt. The right to know and consent of the spouse.

Q: How to understand and grasp the scope of application of Interpretation?

A: Article 4 of the Interpretation states: "This interpretation shall be implemented as of January 18, 2018. After the interpretation of this Interpretation, if the relevant judicial interpretations previously made by the Supreme People's Court are inconsistent with this interpretation, this interpretation shall prevail. ”

"Interpretation" is a refinement and improvement of the issue of the criteria for determining the common debt of husband and wife in social concerns. The content of the "previous judicial interpretation of the Supreme People's Court that contradicted this interpretation" refers mainly to the relevant husband and wife. Other judicial interpretations of the debt recognition standard, which are inconsistent with the provisions of this Interpretation, will no longer apply in the future.

Before the implementation of the Interpretation, the case of the review is indeed a case in which the facts are unclear, the law is wrong, and the result is obviously unfair. The people's court will uphold the principle of seeking truth from facts and correcting mistakes with a highly responsible attitude towards the people. Based on facts, the law is the yardstick, and it is corrected according to law, and efforts are made to make the people feel fair and just in every judicial case. (Reporter Luo Shuzhen)