Hello, the answer to the above question is as follows, distinguished judge:
The plaintiff Li Moumou sues the defendant Hu Moumou, Zhuang Moumou and other private lending disputes. As the agent of the defendant 2 Zhuang Moumou, through investigation, we hereby express the following agency opinions in combination with the facts of the case and the focus of the dispute.
The Plaintiff's debt in this case is Hu's personal debt, which has nothing to do with Defendant 2, because Hu did not appear in court. The Defendant 2 did not know whether the loan was a fact, why the loan was borrowed, and whether the loan was repaid. However, even though the loan was a fact and has not been repaid yet, it is also Hu's personal debt, which has nothing to do with Defendant 2. The reasons are as follows:
(1) Although the debt occurred during the duration of the husband and wife relationship between Hu and Defendant 2, Defendant 2 never knew of the debt, never signed the IOU, never had a common loan agreement with Hu, and Hu's debt was not used for the husband and wife's life. According to Article 19 of the Guiding Opinions of the Senior People of Zhejiang Province on Several Issues Concerning the Trial of Private Loan Dispute Cases, during the duration of the marriage relationship, the debts incurred by one of the husband and wife in their personal name for daily life needs shall be recognized as joint debts of the husband and wife. Daily life needs refer to the necessary matters in daily life of the couple and their minor children living together, including the purchase of daily necessities, medical services, children's education, daily cultural consumption, etc. If one of the spouses is in debt beyond the scope of daily life needs, it shall be recognized as personal debt. From the situation of this case, the plaintiff could not provide evidence to prove that Hu's debt was used for the husband and wife to live together. In fact, during the loan period in 2011, the defendant 2's family really didn't need such a huge amount of loan to live together with their husband and wife. The son was only 6 years old, and there was no need to study abroad. The family members also didn't have serious diseases, so this debt should be identified as a personal debt of Mr. Hu.
According to Article 24 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II), the agent believes that this provision is contrary to the spirit of the Marriage Law, and according to Article 41 of the Marriage Law, at the time of divorce, the debts originally borne by the husband and wife living together shall be repaid together. That is to say, the idea of joint debt of husband and wife should be based on the condition of "debt for the common life", rather than the debt of any party as long as there is a marriage relationship. If one party's personal debts during the marriage relationship are recognized as joint debts of husband and wife, the marriage relationship will become a very dangerous relationship. Once the marriage crisis occurs, one party can damage the interests of the other party through external debts, while the other party has no way, because it is impossible to follow the other party 24 hours a day to prevent the other party from borrowing, This completion is not conducive to the stability of marital relations and social harmony. On the contrary, as a lender, it is fully conditional to make preparations in advance whether it is necessary for the husband and wife to jointly bear the debt. If the borrower husband and wife are required to jointly bear the debt, they can ask the husband and wife to jointly sign when borrowing, otherwise they will not borrow. Therefore, the 19th provision of the 2009 Guiding Opinions of Zhejiang Provincial Senior People on Several Issues Concerning the Trial of Private Loan Dispute Cases is more reasonable. In the previous judicial practice, Zhejiang Province has also been taking the 19th provision of the Guiding Opinions as the condition for determining the joint debt of husband and wife. However, according to Article 6 of the Opinions of the Senior People of Zhejiang Province on the Overall Situation of Service Financial Reform and the Proper Trial of Private Loan Dispute Cases in accordance with the Law, the original intention is to prevent couples from maliciously escaping and abolishing the debts they should jointly bear through divorce and other forms, and the contents of the guidance in 2009 have not been repealed. Therefore, the provision is followed by the words "at the same time, it is also necessary to prevent inappropriate recognition of the joint debt of husband and wife". The civil judgment (2013) YFSCZ No. 854) issued by the people of Fenghua City on January 23, 2014 also reflects the spirit of the guidance of the Provincial High Court in 2009, and so does the recognition of the joint debt of husband and wife.
(2) Defendant 2 had no emotional foundation when they married Mr. Hu. Mr. Hu was remarried. Defendant 2 was introduced to Mr. Hu when he was 34 years old. At the beginning, Defendant 2 was still unmarried because of his old age, and forced to marry Mr. Hu under the pressure of his family. After marriage, the relationship between husband and wife has been inconsistent. Defendant 2 had the idea of divorce for many times, but they did not divorce because of the young children and the dissuasion of their family members. At present, the two have separated. During the marriage relationship, Hu never told Defendant 2 that he would borrow money from others. As for the 10 shares held by Defendant 2 in Fenghua Shanshui Green Packaging Co., Ltd., Hu only registered the 10 shares under Defendant 2 in 2012. The debt occurred in May 2011, when Defendant 2 was not a shareholder of Shanshui Green Packaging Co., Ltd., and Defendant 2 had been a teacher in school, and was completely unaware of the company's business status, In addition, the company is a legal person. Therefore, even if Mr. Hu needs to borrow money for the company's operation, it has nothing to do with Defendant 2. Moreover, the Finance Department said that the loan was not used for the company's operation. Therefore, the fact that Defendant 2 holds 10 shares in the company cannot be used as a reason to determine the joint debt of husband and wife.
(3) The agent believes that, in view of the plaintiff's situation, this debt should also be identified as Hu's personal debt. The plaintiff, Mr. Li, who runs a guarantee company, has social experience and also has perennial legal counsel. He should know that it would be safer for the couple to jointly bear the debt with their signatures at the legal level. The plaintiffs' shrewdness can also be seen from the fact that they asked Mr. Hu to find the guarantor to sign when issuing the IOU for the second time. To borrow such a huge amount of money to Hu, it can be said that Li is more active as a borrower. If the plaintiff asked Defendant 2 to come and sign to confirm the loan at the time of borrowing, it can be said that it is very simple. If Hu and Defendant 2 did need the money to live together, Defendant 2 would come and sign at the request of the plaintiff. However, the plaintiff did not ask Defendant 2 to come and sign, which could indicate that the plaintiff also had the intention of deliberately concealing Hu's loan from Defendant 2, because if Defendant 2 knew about the loan at that time, it would definitely prevent Hu from borrowing.
To sum up, we request to reject the plaintiff's application against defendant 2.
specific date.
