How to adjudicate the marital debt?

stay Divorce proceedings It often occurs that one party holds the effective Debt dispute Case paper of civil judgment Or mediation statement, claiming that debt by Conjugal debt And the other party claims that the debt is forged or is the party who borrows the debt Personal debt 。 If one party's debts in his or her own name during the existence of the marriage relationship are simply presumed to be joint debts of the husband and wife, it will lead some parties to maliciously forge debts, making the marriage full of risks.

Therefore, in the trial divorce Attention should be paid in case Burden of proof The distribution problem of, that is, the debtor should prove that the debt is based on the consent of the husband and wife or used for the husband and wife's common life and business.

According to《 Marriage Law Article 24 of the Judicial Interpretation (II) stipulates that Creditor's rights and debts In dispute, creditor If one of the husband and wife claims rights to the debts incurred by him or her in his or her own name during the existence of the marriage relationship, he or she shall be treated as joint debts of the husband and wife. There are only two exceptions, namely, the husband and wife implement separate property system or clearly agree with the creditor as personal debt. In real life, these two kinds of exceptions are rare, which leads to the fact that most debts are recognized as joint debts of husband and wife in cases brought by creditors. In fact, some are gambling debts borrowed by one spouse or debts forged in collusion with creditors. We believe that, Conjugal debt The problem is really complicated, and we cannot simply cut it all in one fell swoop. At the end of 2003, the Judicial Interpretation of the Marriage Law (II) was issued against the background that in many cases, the couple maliciously colluded to avoid debts, which greatly damaged the interests of creditors. However, after the Judicial Interpretation of the Marriage Law (II) has been applied for a period of time, in the trial practice, the spouse who borrows money and the creditor maliciously collude to damage the rights and interests of the other party. The key to the problem is how to grasp the scale and protect the interests of creditors and the debtor in a balanced way.

Theoretically, couples enjoy family affairs agent Right, within the scope of family affairs agency, one party's external debt should be regarded as the joint debt of both husband and wife. To judge whether the debt raised by one party beyond the scope of family daily needs belongs to the joint debt of husband and wife, it should be analyzed from the legislative intent of the Marriage Law. First, whether the husband and wife have the agreement to raise debt together. If the husband and wife raise debt is the common intention of both parties, regardless of whether the benefits brought by the debt are shared by the husband and wife, the debt should be regarded as joint debt of the husband and wife; The second is whether the debt is used for the husband and wife to live and operate together. In real life, most private lending It is based on credit, that is, creditor trust obligor They have the ability to repay themselves, rather than trust the debtor's spouse to have the ability to repay. Some people believe that it is not only against the principle of relativity of debt in the civil law to presume all the debts of a husband and wife during the existence of the marriage relationship as joint debts, but also more seriously, this presumption is too protective of the interests of creditors, almost exempting creditors from all the duty of care when concluding debts. According to the principle of privity of contract, Effect of contract It only applies to both parties of the contract, and does not bind other persons except for the contract, even if they are the spouse of the contractual obligor. In addition to being responsible for its own signing behavior, the creditor should also bear the risks arising from the transaction.

After the implementation of the Judicial Interpretation of the Marriage Law (II), many scholars and practitioners questioned the provision of Article 24 of the interpretation, believing that it has excessively protected the interests of creditors and filled the marriage with risks. The uninformed spouse may bear debts of a generation for a marriage. In real life, the couple gambled, cashed out with credit cards Usury And other debts, causing the innocent spouse to bear hardships to repay their debts. "This judicial interpretation only emphasizes whether the contract clearly stipulates the formal element of personal debt, and in practice, it cannot be ruled out that the debt of the signatory is not really the substantive content of the marital life, so it is inevitable that the property rights of non signatory parties will be damaged." [2] In the process of drafting the Judicial Interpretation of the Marriage Law (III), It was also considered to revise Article 24 of the Judicial Interpretation of the Marriage Law (II) to a certain extent, but it was finally put on hold because of the excessive controversy.

Carefully study the provision of Article 19 of the Marriage Law: "If the husband and wife agree that the property acquired during the marriage relationship will belong to each other, and if the third person knows the agreement, the property owned by the husband or wife will be used to pay off the debts of the husband or wife." On the other hand, what if the third person does not know the agreement? Is it possible to Conjugal property to discharge? The author found a more authoritative answer from the legislator's book: "If the third person knows the creditor's rights and debt relationship with the husband and wife Conjugal property If it has been agreed that the property should be owned by each party, the property of one party should be used to pay off; If the third party is not aware of the agreement, the agreement shall not be effective for the third party. The debts of the husband and wife to the third party shall be repaid according to the principle of settlement under the joint property system of husband and wife. How the third person knows about the agreement can be either informed by one or both of the husband and wife, or seen when the third person used to be a marital property agreement witness Or insiders. How to judge whether the third person knows the agreement? One or both of the husband and wife have the burden of proof. The husband and wife should prove that the third person really knows the agreement when the creditor debtor relationship occurs. For the purpose of this paragraph, the term "debt owed by the husband or wife to the outside world" refers to the debt incurred between the husband and wife in their own name and a third person. As for the debt incurred for the joint life of the husband and wife or personal debt, regardless of whether it is for the education of their children, or for personal business operations, or for the unauthorized financing of personal relatives and friends, The provisions of this paragraph shall apply. " [3] From the structure of the Marriage Law itself, Article 19 stipulates that“ Family relations ”Article 41 is stipulated in the chapter "Divorce". It can be seen from this that Article 24 of the Judicial Interpretation of the Marriage Law (II) is interpreted in accordance with the spirit of the provisions of the Marriage Law itself, which presumes that the debts of one spouse in his or her own name during the existence of the marriage relationship are joint debts of the husband and wife. The nature of joint debts can be denied only when one spouse provides evidence to prove the two exceptions. The "presumption" standard is applied. debt litigation The "purpose" standard of divorce proceedings should not be followed, because "if the debtor is allowed to pass Divorce agreement Or the effective judgment of the people's court to transfer or change the joint and several liability of the husband and wife for external payment, the creditor's rights may be lost and lost due to the change of the debtor's relationship, and such loss of rights not based on their own fault is contrary to the legal principles of fairness and justice ".

handle Marital debt dispute Three different legal relationships may be involved: first, the creditor sues the creditor and debtor disputes between the husband and wife, that is, the husband and wife's external relations. At this time, the "presumption" standard in Article 24 of the Judicial Interpretation of the Marriage Law (II) should be applied; Second divorce dispute That is, the internal relationship between husband and wife, which is applicable to the "purpose" standard, that is, whether the borrowed debt is used for the joint life of husband and wife; The third is the recovery relationship between husband and wife, that is, Article 25 of the Judicial Interpretation of the Marriage Law (II) stipulates that "one party shall be jointly Debt assumption The people's court shall support the claim against the other party based on the divorce agreement or the legal document of the people's court after the joint and several liabilities have been paid. " Of course, both husband and wife do not claim a certain debt in the divorce proceedings. If one party believes that he or she has assumed more responsibilities in the debt proceedings and has reasonable grounds, he or she can also claim compensation from the other party. Therefore, different standards should be applied when trying debt disputes involved in different legal relationships. Article 24 of the Judicial Interpretation of the Marriage Law (II) has contributed greatly to saving judicial costs, facilitating judges' judgments and effectively protecting creditors' rights. If we consider adding some exceptions, it may be more beneficial for the balanced protection of the property rights of the creditor and the debtor. For example, if a creditor claims rights over debts incurred by one of the husband and wife in their own name during the existence of the marriage relationship, it should be treated as joint debts of the husband and wife. However, unless one of the spouses can prove that the debt has not been used for the couple's common life. If the husband raises a debt outside and the wife can prove that the debt is gambling debt, it should be handled according to the husband's personal debt; If the debtor of the couple who has not borrowed money can prove that the creditor knows or should know that the debt is not used for family life, the debtor should bear the responsibility for repayment. This is the case for guaranteed debt encountered in trial practice. Obviously, the creditor knows that the debt is not used for family life, and one spouse has no obligation to repay the debt guaranteed by the other.

In view of the problems in the trial practice, local courts are also actively exploring new trial ideas. For example, the Higher People's Court of Zhejiang Province Private lending disputes Article 19 of the Guiding Opinions on Several Issues of the Case stipulates that 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 husband and wife is in debt beyond the scope of daily life needs, it shall be recognized as personal debt, except for the following circumstances: 1. The lender can prove that the property obtained from the debt is used for the common life and business needs of the family; 2. The other party of the husband and wife subsequently ratified the debt. If it is not necessary for the family to incur debts in daily life, the lender may invoke《 contract law 》Article 49 The provisions on agency by estoppel require the husband and wife to jointly undertake Debt service Responsibility. The lender who invokes the agency by estoppel rule to require the husband and wife to jointly bear the debt repayment responsibility shall bear the burden of proof for the constitutive elements of agency by estoppel. Another example Shanghai Municipal Higher People's Court Private Loan Contract Article 3 of Several Opinions on Disputes stipulates that: whether the debt in the loan dispute belongs to the joint debt of the husband and wife or personal debt, the provisions of Article 24 of the Judicial Interpretation of the Marriage Law (II) of the Supreme People's Court should be taken as a basic principle first, and at the same time, there are two factors to consider: 1. Whether the husband and wife agree to raise debt jointly; 2. Whether the debt is used for the husband and wife to live together. These two factors are exceptions to the basic principles. If one party has evidence If it is sufficient to prove that both the husband and the wife do not agree to raise debt together or the debt is not used for the husband and wife's common life, the debt can be recognized as the personal debt of the husband and the wife. We believe that these provisions have certain reference significance for the identification of the nature of marital debt.

During the duration of the marriage relationship, the debts incurred by one of the husband and wife due to infringement, such as Tortious conduct For the benefit of the family or in fact for the benefit of the family, such as taxi drivers due to traffic accident The debts that need to be compensated shall be recognized as joint debts of husband and wife; If it is not for the benefit of the family and the family does not benefit in fact, such as compensation for hurting others, compensation for infringement of others' reputation rights, it should be recognized as the personal debt of one party.