Taiyuan Intermediate People's Court of Shanxi Province
paper of civil judgment
(2020) Jin 01 Min Zhong No. 3508
Appellant (the defendant in the first trial): Zhang XX, female, born on July 20, 1980, Han nationality, agronomist of Gujiao Agricultural Technology Promotion Center, living in Gujiao City.
Entrusted agent ad litem: Pan XX Guo Yuanyuan , lawyer of Beijing Yingke (Taiyuan) Law Firm.
The Appellee (the Plaintiff in the original trial): Yue XX, male, born on March 6, 1983, Han nationality, XX police officer of Gujiao City, living in Gujiao City.
The appellant Zhang XX filed an appeal to this court against the civil judgment (2020) Jin 0181 Min Chu 104 of the People's Court of Gujiao City, Shanxi Province due to the dispute over the cohabitation relationship with the appellee Yue XX. After the case was filed on June 9, 2020, the Court formed a collegial panel to hear the case according to law, and the case has now been heard.
Zhang XX's appeal request: 1. revoke the original judgment. 2. The appellee changed the sentence and paid 3000 yuan per month to his illegitimate son, Yue X, until he lived independently. 3. The appellee shall bear the tuition fees, medical expenses and other expenses of Yue X. 4. Room XX, Sandan, Wujiaohua Dormitory Building, Dachuan West Road, Gujiao City, was changed to be owned by the appellant. 5. The adjudged appellee paid 400000 yuan of the appellant's common property discount. 6. The legal costs of this case shall be borne by the appellee. Facts and reasons: The appellant and the appellee were introduced in 2006, and the wedding ceremony was held on April 13, 2007. They have been living together as husband and wife and in the name of husband and wife. Since then, marriage registration procedures have not been handled due to house disputes. After living together, we gave birth to a son named Yue X on June 19, 2008. The appellant has a job and a stable income. The appellee asked the appellant to use his own salary to maintain his family's daily living expenses. The appellee's salary is used to buy a house, a car and savings. The appellee said that "he is the main body and the appellant is the main body". However, the appellee bought a car and a house, but did not inform the appellant of the deposit. Later, the appellant found that the appellee was irresponsible for his family and not devoted to his feelings. The appellee kept close contact with other members of the opposite sex outside on the grounds of working overtime and being on duty. The appellant persuaded the appellee several times, but the appellee still went his own way and continued to contact with other members of the opposite sex. The appellee now earns about 7000 yuan per month. When the court of first instance held a court session, the appellee did not show his salary book and salary flow. On the fourth line of the second page of the judgment, "the court decided that the plaintiff should pay 1000 yuan of alimony every month", and on the tenth line of this page, "the plaintiff, Yue XX, should pay 1600 yuan of alimony every month from April 2020 until Yue X lives independently." The amount of alimony is inconsistent. My son Yue X will go to junior high school later this year and attend a closed school, with an annual tuition of 38000 yuan. The appellant requested the appellee to pay Yue X 3000 yuan a month for living expenses, and to bear Yue X's tuition fees, medical expenses and other expenses. The appellant and the appellee are both first married. After living together, the appellant shares in the family's purchase of a house, a car, and bank deposits. The appellant requests a split. The Appellee was irresponsible for his family and not devoted to his feelings, which caused great physical and mental damage to the Appellant, resulting in the Appellant's long-term emotional anxiety, physical illness, inability to work normally, and frequent medication. To sum up, the appellant requested to revoke the original judgment, and to change the judgment, the appellee paid 3000 yuan per month to his son, Yue X, as well as his tuition fees, medical expenses and other expenses. The appellant owns one set of XX room, Sandan, Wujiaohua dormitory building, Dachuan West Road, Gujiao City. The appellee pays the appellant 400000 yuan as a discount to the common property to safeguard the legitimate rights and interests of the appellant and his son Yue X.
The appellee Yue XX argued that my parents bought the house for me before we lived together, but there was no transfer procedure. The previous owner was Dong XX. This house is relatively small and of poor quality. At that time, I wanted to replace it with a larger one. Later, we had a conflict and left it behind. If this house is judged, I think it is the most fair and reasonable to award it to the child. The appellant used her salary to buy the financial insurance and major disease insurance of XX Company in China. When he bought the insurance, his registered mobile phone number was mine. For example, when he paid dividends or fees every month, he sent me a text message, and I sometimes transferred it to the appellant. The appellant's money is for insurance, not for family expenses. If the appellant does not have the ability to raise the child independently, he will directly award the child to me.
Yue XX's lawsuit request to the court of first instance: 1. Request the court to terminate the cohabitation relationship between the plaintiff and the defendant according to law, and warn the defendant not to pester the plaintiff; 2. The illegitimate son Yue X shall be brought up by the plaintiff, and the defendant shall pay 500 yuan of maintenance fee every month until Yue X comes of age; 3. The court is requested to judge the building XX501, No. 3, Wujiaohua Dormitory Building, Dachuan West Road, Gujiao City, where the defendant currently lives, to Yue X. The defendant shall not sell it. Facts and reasons: The Plaintiff and the Defendant were introduced to each other in 2006. On April 13, 2007 (February 26 of the lunar calendar), they went through the marriage ceremony in Gujiao City according to local customs, but never went through the marriage registration procedures. On June 19, 2008, they gave birth to their son Yue X. Due to the lack of necessary understanding of each other and their families between the plaintiff and the defendant "before marriage", the plaintiff and the defendant have quarreled over trivial matters for many times due to their great personality differences after living together. "After marriage", the plaintiff was busy with work and neglected to take care of his family. The defendant, because of his suspicious personality and obedience to others, slandered the plaintiff for being unfaithful to his family and kept four or five women outside. Moreover, the defendant spread false statements in the plaintiff's work unit, the Organization Department and the Discipline Inspection Commission, resulting in the plaintiff's inability to hold up his head in front of his colleagues, which had a significant impact on the plaintiff's work and hurt his spirit. To sum up, the relationship between the plaintiff and the defendant has completely broken down, and there is no possibility of continuing to live together. According to the relevant provisions of the General Principles of the Civil Law, the Marriage Law and the Civil Procedure Law, the request for judgment is as requested.
The court of first instance found that the Plaintiff and the Defendant were introduced to each other in 2006, and a marriage ceremony was held according to local customs on April 13, 2007, after which they began to live together without marriage registration. During their cohabitation, they gave birth to a son named Yue X, a student of Gujiao Dehuizhi Primary School, on June 19, 2008, and now lives with the defendant. In July 2019, the plaintiff moved out of the house where both parties lived together. On January 14, 2020, the original told the court to request that the judgment be granted as requested.
The court of first instance held that, according to the provisions of Article 1 of the Interpretation of the Supreme People's Court on the Application of Several Issues of the Marriage Law of the People's Republic of China (II), the people's court would not accept a lawsuit filed by a party requesting the dissolution of the cohabitation relationship. According to relevant regulations, cohabitation relationship is not protected by law, but the rights and obligations of children born during cohabitation are similar to those of children born in wedlock. Yue X, the son of the Plaintiff and the Defendant, has been living with the Defendant for a long time, and changing his living environment is detrimental to his healthy growth. Therefore, Yue X should continue to be supported by the Defendant, and the Plaintiff should bear the corresponding alimony. The Court, in its discretion, determines that the Plaintiff should pay 1600 yuan of alimony per month. During the trial, the defendant claimed to divide the property, but did not provide evidence to prove it. He should bear the responsibility of failing to provide evidence, and his statement was not recognized by the court. According to the provisions of Article 25 of the Marriage Law of the People's Republic of China and Article 64 of the Civil Procedure Law of the People's Republic of China, it is decided that Yue X, a minor child, shall be supported by the defendant Zhang XX, and Yue XX, the plaintiff, shall pay 1600 yuan of maintenance fees every month from April 2020 until Yue X lives independently. This amount shall be paid semi annually, and shall be paid before January 5 and July 5 of each year respectively. The alimony for the first half of 2020 shall be paid within 10 days after this judgment comes into effect. The case acceptance fee of 50 yuan shall be borne by the defendant Yue XX.
During the second instance of the Court, the appellant submitted evidence according to law around the appeal request. The court organized the parties to conduct evidence exchange and cross examination.
After examination, the evidence submitted by the appellant is not new evidence, and has no relevance to its appeal request, so the Court will not accept it.
The facts ascertained by our court are consistent with those ascertained by the court of first instance.
In the court's opinion, in the trial of disputes over cohabitation relations, the wages, bonuses, production and business income obtained by the parties during the cohabitation period, as well as the legitimate income derived from inheritance, gifts and other ways, in principle belong to them; If both parties have jointly purchased property or income from joint operation during the period of cohabitation, they shall be fairly and reasonably divided according to their share of capital contribution and contribution. According to the first paragraph of Article 64 of the Civil Procedure Law of the People's Republic of China, "The parties have the responsibility to provide evidence for their claims." In this case, the appellant did not provide evidence to prove that both parties had jointly purchased property or income from joint operations during the period of cohabitation, and he should bear the legal consequences of failure to provide evidence. Therefore, the appellant's claim that the Sandan XX house located in Wujiaohua dormitory building, Dachuan West Road, Gujiao City should be owned by the appellant, and that the appellee should pay 400000 yuan as a discount for their common property, cannot be established, and the Court does not support it. With regard to the appellant's claim that the appellee should pay 3000 yuan of monthly alimony to Yue X, during the trial of the second instance, the appellee issued a "statement" to the court and voluntarily paid 2000 yuan of monthly alimony to Yue X, which was confirmed by the court. According to Article 21 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 (I), "the term 'maintenance fees' as mentioned in Article 21 of the Marriage Law includes children's living expenses, education fees, medical fees and other expenses". Therefore, the Court will not support the Appellant's request to pay tuition fees, medical fees and other expenses again when the Appellee pays a monthly alimony of Yue X2000 yuan. To sum up, the Court supports the appellant Zhang XX's partial appeal request. In accordance with Article 21, paragraph 1, and Article 25 of the Marriage Law of the People's Republic of China, Article 21 of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Marriage Law of the People's Republic of China (I), and Article 614, paragraph 1, and Article 170, paragraph 1, item 2 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
1、 Cancel the civil judgment (2020) Jin 0181 Min Chu 104 of the People's Court of Gujiao City, Shanxi Province;
2、 The minor Yue X is supported by the appellant Zhang XX, and the appellee Yue XX will pay 2000 yuan of alimony every month from April 2020 to the age of Yue X18 (semi annually, before January 5 and July 5 of each year, and within 10 days from the effective date of this judgment in 2020);
3、 Reject other appeals of the appellant Zhang XX.
The first instance case acceptance fee of 50 yuan shall be borne by the appellee Yue XX; The case acceptance fee of the second instance is 100 yuan, which shall be borne by both parties half and half.
This judgment is final.
Chief Judge Guan Wenjing
Judge Mi XX
Judge Niu Xiaobin
July 14, 2020
Clerk Guo XX
