1. Lawyer Litigation Case Template

1. Collection of basic case information

Case Type: Lawyer Litigation Cases

Business Type: Private Lending Litigation

Court decision time: November 4, 2015

Court name: Ningbo Intermediate People's Court

Attorney's name: Chen Jing

Law firm name: Zhejiang Boning Law Firm

Contribution (real name, unit + name): Zhejiang Boning Law Firm

Review (real name, level by level):

Search subject terms: loan, husband and wife joint debt

2. Collection of case text

Zhu Moumou v. Jiang Moujia and Jiang Mouyi in a private loan dispute case

【Introduction to the case】

The two defendants were husband and wife. They jointly established and operated a Ningbo Co., Ltd. on November 4, 1999, and then jointly established and operated a Yuyao Co., Ltd. on February 12, 2004.

In March 2011, Jiang Moujia, on behalf of the two defendants, borrowed 2.5 million yuan from the plaintiff because the operating company needed capital to expand the factory and office building, carry out decoration and repay the loan, with an agreed loan period of one year and a monthly interest of 6%. After the loan expired, the two defendants proposed to renew the loan. After settlement, Jiang Moujia reissued a loan amount of 2.7 million yuan on March 28, 2012 on behalf of the two defendants. centimeters. So far, the two defendants have not repaid the loan interest.

In July 2011, Jiang Moujia, on behalf of the two defendants, borrowed 2 million yuan from the plaintiff because the operating company needed capital to purchase raw materials, with an agreed loan period of nine months and a monthly interest of 1.5 cents. After the loan expired, the two defendants proposed to renew the loan. On April 15, 2012, Jiang Moujia, on behalf of the two defendants, re-issued an IOU with a loan amount of 2 million yuan, with an agreed loan period of six months and a monthly interest of 1.5 cents. After the loan expired, the two defendants only repaid a total of 1.3 million yuan, and the principal and interest of the rest of the loan were not repaid.

The latter two defendants agreed to divorce on March 12, 2013 in order to avoid paying their debts. The plaintiff believed that the two defendants were originally husband and wife, and they borrowed money from the plaintiff during the period of the marriage for the needs of the company's production and operation, and the property obtained by Jiang Moujia's debts was used for the family's common living and business needs. The above loan should belong to the husband and wife jointly. The two defendants shall be jointly and severally liable for the debt. The plaintiff has repeatedly demanded repayment and interest payment from the two defendants, but the two defendants have evaded it for various reasons, which has infringed upon the plaintiff's legitimate rights and interests. The plaintiff had no choice but to entrust our lawyer to file a lawsuit. The first instance ruled that the plaintiff won the case, and the two defendants appealed. The second instance court remanded the case for retrial on the grounds that the first instance procedure was wrong.

After the first-instance retrial ruled that the plaintiff won the case, the two defendants appealed again, and the appellee (the plaintiff) entrusted our lawyer to represent the second-instance retrial. The second-instance verdict of the retrial upheld the first-instance verdict and dismissed all appeals of the two appellants (two defendants).

【Agent opinion】

We believe that this case is a private loan dispute, and the main points of dispute are: 1. Only one spouse signed on the IOU and the husband and wife were divorced when the lawsuit was filed. Can the loan be considered a joint debt of the husband and wife? 2. The IOU is reissued after the loan is renewed and settled. If it is inconsistent with the principal amount of the first payment, should the principal be determined based on the IOU or the payment voucher?

1. The loan involved in the case occurred during the husband and wife relationship between the two defendants (appellants), and on this basis alone, it should be identified as a joint debt of the husband and wife

Legal basis 1: Article 24 of the Supreme People's Court's "Interpretation II on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China" stipulates that "where a creditor claims rights for debts borne by one spouse in their own name during the existence of the marriage relationship, they shall be treated as joint debts of the husband and wife. deal with."

Legal basis 2: Zhejiang Higher People's Court "Answer to relevant questions in cases where one spouse is a debtor through the enforcement of effective legal documents" (passed at the 2508th meeting of the Judicial Committee of Zhejiang Higher People's Court on January 27, 2014) Relevant regulations, " 2. How to grasp the judgment standard of the nature of the debt in the execution procedure? Answer: If the execution basis is not clear about the nature of the debt, the execution procedure can be judged and reviewed in accordance with the provisions of the Marriage Law of the People's Republic of China and its judicial interpretations. Whether it happened during the existence of the marital relationship is used as the criterion for judgment."

2. The loan involved in the case was jointly borrowed by the two defendants from the plaintiff. Based on this alone, it should be identified as a joint debt of the husband and wife

The testimony of relevant witnesses can prove that the loan was jointly borrowed by the two defendants. The main relevant contents are as follows:

Testimony of Li Moumou: "In mid-March 2011", "a man and a woman came", "I only heard that the guest borrowed money from Lao Zhu, and the amount was very large, more than 2 million", "The female guest also added: If my brother is not at ease, I can bring the real estate certificate as collateral", "The female guest said: I am in charge of all the finances of the factory, and the use of the funds is up to me, and there will be no problem."

Xu Moumou's testimony (Huang Moumou testified): "I remember that one day in early July 2011, Lao Zhu brought his cousin and his family of four to my restaurant for dinner", "I listened to their husband and wife during the banquet: the price of raw materials has dropped recently and imported Materials are opportunities, but funds are difficult, can you ask Lao Zhu to help solve it.”

To sum up, the two defendants have an agreement to jointly raise debts for the loans involved.

If the husband and wife have the agreement to raise debts jointly, regardless of whether the benefits brought by the debt are shared by the husband and wife, the debt should be recognized as a joint debt.

3. The loan involved in the case was used for the joint operation of the two defendants. Based on this alone, it should be identified as a joint debt of the husband and wife

Ningbo Qianjin Rubber Co., Ltd. was jointly established and operated by the two defendants from November 4, 1999 to February 28, 2013. Yuyao Qianjin Lighting Co., Ltd. was also jointly established and operated by the two defendants from February 12, 2004 to February 28, 2013. Several relevant witnesses testified that the loan was borrowed by the two defendants on the grounds of company operation.

To sum up, the loan involved in the case was used for an enterprise jointly operated by the two defendants, and the two defendants shared the benefits brought by the loan involved during the existence of the husband and wife relationship, regardless of whether the husband and wife agreed to borrow the debt, the debt should be recognized as a joint debt.

4. The loan involved in the case was borne by the common interests of the two defendants. Based on this alone, it should be recognized as a joint debt of the husband and wife

The loan involved in the case was used for the joint operation of the two defendants, and was obviously borne by the common interests of the two defendants.

Taking a step back, even if it is assumed that the loans involved are not actually used for the enterprises claimed by the two defendants, but are actually used for family living together and/or for lending to others, etc., it is obviously borne by the common interests of the two defendants. The two defendants were not divorced at the time, and the husband and wife were a community of interests.

Therefore, regardless of whether the loan involved is used for the enterprise jointly operated by the two defendants, it is borne by the common interests of the two defendants.

5. The repayment of the loan involved in the case was jointly repaid by the two defendants. Based on this alone, it should be recognized as a joint debt of the husband and wife

The multiple repayments of the loans involved in the case occurred during the period of the relationship between the two defendants, and they were the joint property of the husband and wife. Jiang Mouyi never objected to this. It can be seen that even if it is assumed that the debt involved in the case was originally borne by the defendant Jiang Moujia , Jiang Mouyi also ratified the debt.

What's more, shortly after the first instance of the case was filed, although the court failed to serve the defendant Jiang Mouyi, Jiang Mouyi submitted to the court an "application for reconsideration dated December 11, 2013" for the property preservation applied for by the plaintiff. ”, and the application lists the case number of the case and the relevant ruling number, as well as other information about the case, which proves that the defendant Jiang Mouyi is actually fully aware of the process and specific information of the case, and has entrusted legal professionals to provide him with relevant information. Serve. When Jiang Mouyi actually knew the progress of the case and had the help of legal professionals, he refused to cooperate with the service, deliberately caused the announcement to be served to delay the time, and refused to appear in court. Prove that Jiang Mouyi has no objection to the plaintiff's claim.

In addition, before this lawsuit, the plaintiff had filed lawsuits against the defendant for the loan involved many times, and Jiang Mouyi never provided any rebuttal evidence or defense opinion, but repeatedly advocated a negotiated settlement and asked the plaintiff to withdraw the lawsuit.

To sum up, even if it is assumed that the loan involved was borne by the defendant Jiang Moujia, and even if it is assumed that the loan involved was not used for the enterprise jointly operated by the two defendants, Jiang Mouyi first ratified the debt by repayment, and then gave up the debt. The act of defending and giving up the right of proof has ratified the debt involved again, so it should be identified as a joint debt of the husband and wife.

6. The plaintiff has fulfilled the burden of proof for the joint debt of the husband and wife. If Jiang Mouyi denies the joint debt, he must bear the burden of proof

When the plaintiff, as a creditor, sues the husband and wife for repayment, the plaintiff only needs to prove that the debt was formed during the existence of the husband and wife relationship, and then the burden of proof is fulfilled. The debt should be identified as a joint debt of the husband and wife, and the husband and wife should jointly repay. If one spouse denies the joint debt and refuses to undertake the repayment obligation, it must prove the existence of the exceptions stipulated in Article 24 of the Interpretation of the Marriage Law, or it can prove that the creditor knows that the debt is a personal debt but still conducts debt transactions with the debtor.

In this case, the defendant Jiang Mouyi did not provide any evidence to prove that the debt involved was Jiang Moujia's personal debt, so it should be identified as a joint debt of the husband and wife.

Legal Basis 1: Article 24 of the Supreme People's Court's Interpretation II on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China stipulates that, "Where a creditor claims a right to a debt borne by a spouse in the name of an individual during the marriage relationship, the debt shall be treated as a joint debt of the husband and wife. Handling. However, one spouse can prove that the creditor and the debtor have clearly agreed to a personal debt, or can prove that it falls under the circumstances specified in the third paragraph of Article 19 of the Marriage Law.”

7. About principal and interest

The principal recorded in the renewing IOU is the amount confirmed after settlement by the original and the defendant. After the signature and approval of both parties, both parties are adults with full capacity for civil conduct and should be responsible for their signatures. Therefore, the principal should be based on the IOU. allow.

【Judgment Result】

The court of second instance upheld the first-instance verdict and dismissed the appeals of the two appellants.

【Judgment Document】

The court of first instance held that there were three points of dispute in the case: 1. Whether the loan relationship between Zhu Moujia and Jiang Moujia was established; 2. How much money Jiang Moujia still owed Zhu Moumou; 3. Whether the debt belonged to Jiang Moujia, Jiang Moujia A husband and wife have a joint debt.

In response to the second dispute focus, the court of second instance held that: Jiang Moujia's two IOUs issued on March 28, 2012 and April 15, 2012 stated that he had borrowed 270,000 yuan and 2,000,000 yuan from Zhu Moumou, totaling 4,700,000 yuan , Jiang Moujia believes that 2,391,000 yuan was actually received in the 2,700,000 yuan IOU, and 1,910,000 yuan was actually received in the 2,000,000 yuan IOU, and the loan principal and interest should be calculated according to the amount actually received. However, according to the ascertained facts, the delivery time of the payment stated in the 2,700,000 yuan IOU was March 28, 2011, and the actual delivery amount at that time was 2,410,000 yuan. The delivery time of the payment stated in the 2,000,000 yuan IOU was July 15, 2011, and the actual payment at that time was 1,910,000 yuan. Zhu Moumou believes that the 2,700,000 yuan IOU is the settlement of the principal and interest of the 2,410,000 yuan loan delivered on March 28, 2011, and the 2,000,000 yuan IOU is the settlement of the 1,910,000 yuan loan principal and interest delivered on July 15, 2011, which is in line with the actual situation. A also did not provide rebuttal evidence enough to overturn the probative force of the IOUs, so the probative force of the two IOUs involved in the case was confirmed. Jiang Moujia believes that the principal and interest of the loan should be calculated according to the amount actually delivered at that time, and the reasons are insufficient and cannot be supported.

Regarding the third dispute focus, the court of second instance held that: the loan involved occurred during the period of the relationship between Jiang Moujia and Jiang Mouyi, and Jiang Moujia and Jiang Mouyi benefited from Jiang Moujia's transfer of the loan. The original trial determined that the debt involved was It is not inappropriate for Jiang Moujia and Jiang Mouyi to have a joint debt. Jiang Moujia and Jiang Mouyi believe that the debt involved in the case is Jiang Moujia's personal debt, and they do not support it for insufficient reasons.

To sum up, the court of second instance held that the appeals of the two appellants were not valid, and the appeal was dismissed and the original judgment was upheld.

【Case Analysis】

1. How to determine the joint debt of husband and wife?

How to determine the joint debt of husband and wife is a controversial issue. No matter in terms of regulations or practical judgment, there is no unified judgment rule.

Although Article 24 of the Supreme People's Court's Interpretation II on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China clearly stipulates, "Article 24 Where a creditor claims rights for debts borne by one of the spouses in his own name during the marriage relationship, he shall The joint debt of husband and wife is handled. However, the husband and wife can prove that the creditor and the debtor have clearly agreed to a personal debt, or can prove that it falls under the circumstances specified in the third paragraph of Article 19 of the Marriage Law.” The 2015 National Civil Trial Work Conference Minutes pointed out: “7 . In a divorce case that does not involve others, the spouse who borrows the debt in his own name is responsible for producing evidence to prove that the debt is used for the husband and wife to live together. If the evidence is insufficient, the spouse shall not be liable for repayment. In a debt dispute case prosecuted for the defendant, whether the debt involved in the case is a joint debt of the husband and wife shall be determined in accordance with 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 (2)". If the spouse of a person proves that the debt borrowed is not for the husband and wife to live together, he shall not bear the responsibility for repayment." However, there is a great controversy in judicial practice, and some judgments are made according to this, and some judgments are not made according to this.

In this case, the first-instance judgment, the retrial first-instance judgment, and the second-instance judgment were all determined to be joint debts of the husband and wife. It can be seen that the opinions of different collegial panels and the courts at the two levels are relatively uniform on this case, because this case is fortunate that there is evidence to show that the husband and wife are jointly Debt, and the defendant has no evidence to prove that it is a personal debt, so it is more obvious how to judge. However, if the plaintiff cannot provide evidence of the joint debt of the husband and wife, and the principal of the loan in this case is as high as millions, whether the court can assign all the burden of proof to the defendant based on the judicial interpretation of the Marriage Law, and decide that the defendant loses the case, I am afraid that the plaintiff will be concerned. Not optimistic.