1. Collection of basic case information

Case Type: Lawyer Litigation Case

Type of business: contract litigation

Court judgment date: September 20, 2015, May 17, 2016, January 16, 2017

Court name: Ningbo Haishu District People's Court, Ningbo Intermediate People's Law

Court, Zhejiang Higher People's Court

Attorney's name: Zhu Pingfei

Law Firm Name: Zhejiang Boning Law Firm

Source: Zhejiang Boning Law Firm

Review (real name, level by level):

Search subject heading: The nature of the debt borne by one party in his own name during the marriage

2. Collection of case text

Zhang Moumou v. Xu Moumou and Chen Moumou private loan dispute case

【Introduction to the case】

Zhang Moumou and Xu Moumou were originally neighbors. From August 15 to 17, 2011, Zhang lent cash to Xu XX three times for a total of 200,000 yuan. From August 23, 2011 to August 2012, Zhang XX remitted to Xu XX several times through the bank to borrow a total of 1,520,000 yuan. Yuan, Xu Moumou issued an IOU to Zhang Moumou, and transferred it to other outsiders on the same day or the next day after receiving the above-mentioned remittance from Zhang Moumou. From August 11, 2011 to July 1, 2013, Xu Moumou remitted the interest to Zhang Moumou several times through the bank.

Xu Moumou and Chen Moumou registered their marriage on May 25, 2009, and Xu Moumou remarried. On August 19, 2013, the two parties agreed to divorce, and they did not have children within the marriage. On May 25, 2009, Xu Moumou and Chen Moumou went to Ningbo Yongxin Notary Office for notarization of their pre-marital property. The notarization confirmed: 1. The three houses and one office space under Chen Moumou's name belong to Chen Moumou. All; 2. A set of off-plan apartments in Times Square under the name of Chen Moumou is owned by Chen Moumou. The off-plan house has paid 1,188,774 yuan, and the remaining 1,760,000 yuan is borne by Chen Moumou; 3. The existing bank under Chen Moumou's name Deposit 850,000 yuan.

In addition, on March 10, 2009, Chen Moumou signed a "Real Estate Transfer Contract" with the person outside the case to transfer a set of pre-marital villas under his name. On June 24 of the same year, the person outside the case transferred 2,400,000 to him via China CITIC Bank. Yuan. On September 4, 2009, Chen Moumou remitted to Yinyi Real Estate the balance of 1,683,979 yuan for the real estate in Times Square via Ningbo Bank.

In addition, from January 2011 to November 2012, Chen Moumou remitted a total of more than 4,400,000 yuan to Xu Moumou. During this period, Xu Moumou successively remitted the money back to Chen Moumou, and the amount was basically the same. On August 19, 2013, Xu Moumou and Chen Moumou reached a divorce agreement. The agreement stated: 1. There is no deposit during the marriage, and each deposit will be owned by each other after the divorce; The property purchased is owned by the woman; 3. Both parties confirm that the debts owed during the marriage shall be borne by the debtor.

In addition, Chen Moumou is an employee of a financial institution in the city with a stable income. Xu Moumou invested in two companies: 1. Zhenjia Company, established on December 15, 2010, with a registered capital of 10,000,000 yuan, and defendant Xu Huiming held 30% of the shares; 2. Dr. Ken Company, established on January 23, 2009, The registered capital is 5,000,000 yuan, and the defendant Xu Huiming holds 45% of the shares and is the legal representative. At the time of the divorce, Xu Moumou's equity in the two companies was not involved.

On January 22, 2015, Zhang Moumou filed a lawsuit with Xu Moumou and Chen Moumou as defendants. After Chen Moumou received a copy of the court complaint, he entrusted our lawyer to participate in the litigation activities of the case. Xu Moumou was absent from the trial due to unknown whereabouts. After several court trials, the first instance held that the evidence provided by Zhang Moumou was insufficient to prove that the loan was used for living expenses and production and operation needs during the marriage of Xu Moumou and Chen Moumou. XX also did not ratify the loan. The loan was a debt of Xu XX, and Xu XX was judged to be responsible for repaying the principal and interest.

Zhang Moumou refused to accept the first-instance judgment and filed an appeal. After the trial, the second-instance court held that Zhang Moumou's claim was difficult to determine that the loan was used in the common life and joint operation of Xu Moumou and Chen Moumou, and it was also difficult to determine that Xu Moumou, Chen Moumou had the fact of evading debts through divorce, and the judgment rejected the appeal and upheld the original judgment.

【Agent opinion】

1. Chen Moumou was unaware of the existence of the loan and how the interest was agreed. He did not participate in the loan beforehand, nor did he ratify the loan afterwards.

Xu Moumou and Chen Moumou remarried. Before registering their marriage in May 2009, they signed a prenuptial property agreement and notarized it. On August 19, 2013, the two parties ended their short-lived marriage due to discord. Due to remarriage and Xu Moumou having children, both parties managed their own income after marriage.

Zhang Moumou claimed that from August 2011 to February 2013, Xu Moumou borrowed a total of RMB 1.72 million from him, but Chen Moumou did not know it. Chen Moumou claimed that he did not know Zhang Moumou and Zhang Moumou. He also admitted that Chen Moumou was not present when he borrowed the loan, and he did not know about the loan between him and Xu Moumou. After Xu Moumou's whereabouts were unknown, until he filed a lawsuit in the court, he never claimed the principal and interest of the loan he alleged against Chen Moumou. As a result, Chen Moumou did not participate in Xu Moumou's loan to Zhang Moumou beforehand, nor did he investigate and recognize the loan afterwards.

2. Although Zhang Moumou's alleged loan occurred during the marriage of Xu Moumou and Chen Moumou, but the loan is Xu Moumou's personal debt, there is no factual and legal basis for his request for Chen Moumou to jointly repay the loan principal and interest. The specific reasons are as follows:

1. Chen Moumou and Xu Moumou did not agree to jointly borrow money from Zhang Moumou.

The parties to the loan agreement in this case are Zhang Moumou and Xu Moumou. Only Zhang Moumou and Xu Moumou are most clear about the time, purpose and interest of the loan, and there must be a basic relationship between the borrower and the creditor who can produce a loan agreement. Especially as the lender, he must have a basic understanding of the borrower, including his family situation and assets, and have a relatively large grasp of the recovery of the loan, so that such a large amount of money can be transferred. Delivered to the borrower with confidence. In this case, the borrower was Xu Moumou, and Chen Moumou not only did not know Zhang Moumou, but also did not know about the loan from beginning to end, and did not ratify it afterwards. Therefore, there is no agreement between Chen Moumou and Zhang Moumou for any loan.

2. None of the loans from Xu XX alleged by Zhang XX were used for common living expenses and production and operation during the marriage of Xu XX and Chen XX.

During the trial, Zhang XX failed to clarify the exact purpose of Xu XX's loan from him. He said that it was used to repay the housing loan, and then he said that it was used for the joint operation of Xu XX and Chen XX. Later, Zhang Moumou applied to the court for investigation and evidence collection. The court obtained all the bank account numbers and bank transfer lists of Xu Moumou and Chen Moumou during their five-year marriage. The bank flow list showed that there was a transfer between Xu Moumou and Chen Moumou. Records, but all occurred outside the time of Zhang and Xu's loan and transfer, and the amount of transfer between the two parties was basically the same. The only one is related to the 200,000 that Xu transferred to Chen Moumou the next day after Zhang Moumou transferred money to Xu Moumou. Chen Moumou also provided the court with Chen Moumou on the same day three months ago. A bank remittance voucher of 200,000 yuan for a transfer to Xu. The most important thing is that concerning the money that Zhang Moumou borrowed to Xu Moumou through bank transfer, Xu Moumou's bank flow list obtained by the court was transferred to Xu Moumou on the same day or the next day after receiving the loan. Third parties outside the case, and these third parties outside the case not only have nothing to do with Chen Moumou, but Chen Moumou does not know them either.

In addition, two companies invested by Xu Moumou, Dr. Ken Company and Zhenjia Company, were established on January 23, 2009 and December 15, 2010, respectively, while the loan alleged by Zhang Moumou occurred in August 2011. until February 2013. Moreover, although Xu Moumou has equity in the above two companies, he does not participate in the operation. During his marriage with Chen Moumou, he worked in a pawn company, and Xu Moumou has no equity in the pawn company. As a result, none of the loans that Zhang XX claimed from Xu XX was used for the common living expenses and production and operation of Xu XX and Chen XX during their marriage.

3. Chen Moumou did not share the benefits brought by Zhang Moumou's alleged loan, and all the houses under his name are his pre-marital properties.

The court investigation, especially the third trial, focused on the whereabouts of the money transferred by Zhang Moumou to Xu Moumou. Xu Moumou did not use the money transferred by Zhang Moumou to purchase joint property after marriage such as real estate and cars. Chen Moumou purchased a house in his name during the marriage, but before he borrowed from Zhang Moumou, Chen Moumou and Xu Moumou agreed in the divorce agreement that the house belonged to Chen Moumou, but Chen Moumou XX did not actually obtain the house. Soon after the two parties filed for divorce, Xu XX transferred the house to a third party outside the case, and the third party outside the case also paid the equivalent housing price to Xu XX. As for Xu Moumou's equity in other companies before and after marriage, Chen Moumou not only did not know about it, but did not divide the profits in the divorce agreement. All the houses under Chen Moumou's name are pre-marital personal properties that have been notarized before registering marriage with Xu Moumou.

3. Chen Moumou and Xu Moumou have remarried, and the financial sharing system is implemented during the marriage, and Zhang Moumou should bear a certain duty of care.

Xu Moumou and Chen Moumou remarried. Before registering their marriage in May 2009, they signed a prenuptial property agreement and notarized it. On August 19, 2013, the two parties ended their short-lived marriage due to discord. Due to remarriage and Xu Moumou having children, both parties managed their own income after marriage. Zhang Moumou can entrust such a large amount of loan to Xu Moumou, and it took three or four years from the loan to the lawsuit. Zhang Moumou never filed such a large amount of loan with Chen Moumou. He did not know Xu Moumou. The claims of a certain marital and property status are unconvincing.

Fourth, in terms of the provisions and application of laws and judicial interpretations, Zhang's alleged loan should also be identified as Xu's personal debt.

1. Article 19 of Zhejiang Higher People's Court's "Guiding Opinions on Several Issues Concerning the Trial of Private Lending Dispute Cases" states that "during the existence of the marriage relationship, the debts borne by one spouse in his own name for daily needs shall be recognized as joint debts of the husband and wife" The following explanation is made: "Daily life needs refer to the necessary matters in daily life of both husband and wife and minor children living together, including daily necessities purchase, medical services, children's education, daily cultural consumption, etc.". "If one spouse is in debt beyond the scope of daily life needs, it shall be recognized as a personal debt, except for the following situations: (1) the lender can prove that the property obtained from the debt is used for the family's common life and business needs; (2) the other spouse after the event. The debt shall be ratified." From the guidance, the burden of proof rests with the lender as to whether the loan claimed by the plaintiff in this case is a joint debt of the husband and wife. In this case, none of the certificates submitted by Zhang Moumou to the court can prove that the money transferred to Xu Moumou purchased a house or ran a company after marriage, that is, none of the evidence submitted by Zhang Moumou can prove that the loan was used for family living together.

2. According to the judicial interpretation of the "Marriage Law" and the Supreme People's Court's (2014) Min Yi Ta Zi No. 10 reply, combined with the materials obtained from the court in this case, Xu Moumou transferred all the money to someone Chen Moumou did not know. third person. As well as the notarial certificate of prenuptial property agreement, divorce agreement and the property information of both parties before and after marriage provided by Chen Moumou to the court, as Chen Moumou who has no agreement with Zhang Moumou and has divorced the debtor, in the debtor Xu Moumou Under the circumstance that the whereabouts of a certain person is unknown and the announcement of this case is served, Chen Moumou has fulfilled the burden of proof that the debt is not for the husband and wife to live together.

【Judgment in the first instance】

The first instance held that there are two points of dispute in this case. First, is there an agreement between Zhang Moumou and Xu Moumou? Second, can the loan involved in the case be identified as a joint debt of husband and wife? Dispute focus one, from the bank flow list submitted by Zhang Moumou Analysis, combined with the content of the text messages of the two, it can be determined that there is an interest agreement between Zhang Moumou and Xu Moumou. The second point of contention is that the loan involved in the case cannot be identified as a joint debt of the husband and wife. The reasons are as follows: 1. Although the loan involved in the case occurred during the existence of the relationship between husband and wife, the IOU for the loan involved was issued by Xu Moumou to Zhang Moumou, the money was also remitted to Xu Moumou’s bank account, and the interest was also paid by Xu Moumou, and all the The amount of the loan is relatively large, and there is no evidence to prove that it is used for the living expenses of the husband and wife. Zhang Moumou also recognized that Chen Moumou did not intervene in Xu Moumou's loan to him during the trial, and did not ask Chen Moumou to ask for it after the loan expired. 2. Xu Moumou has remarried, and Xu Moumou and Chen Moumou have notarized their prenuptial property. Chen Moumou has a high stable income, which is enough to maintain his life and pay the mortgage of the prenuptial property. As for Zhang Moumou's suggestion that the property fees of the community where Xu Moumou and Chen Moumou live are paid by Zhongwang Company, this court believes that Xu Moumou and Chen Moumou lived together during the marriage, and Xu Moumou should bear part of the living expenses. It is normal and reasonable, and it cannot be concluded that the loan is used for the husband and wife to live together. 3. Chen Moumou has a fixed job, and there is no evidence to prove his involvement in Xu Moumou's business activities. And the time when the loan involved was generated, although Xu Moumou and Chen Moumou had money exchanges, the funds between the two sides were basically the same, and there was no evidence to prove that the money Zhang Moumou lent to Xu Moumou had been occupied by Chen Moumou.

To sum up, the evidence provided by Zhang Moumou is not enough to prove that the loan was used for the common life and business needs of Xu Moumou and Chen Moumou during their marriage, and Chen Moumou did not ratify the loan afterwards. Xu XX was in debt, so the reason why Zhang XX was a joint debt was not established. It was judged that Xu Moumou should repay Zhang Moumou’s loan of 1,720,000 yuan and pay interest of 610,488 yuan, and rejected Zhang Moumou’s other claims.

【Second Instance Judgment】

Zhang Moumou refused to accept the judgment of the first instance, believing that the facts found in the first instance were unclear and the law was wrongly applied, so he filed an appeal. In the second instance, Chen Moumou continued to entrust our lawyers to participate in litigation activities as agents.

The facts found in the second instance are basically the same as in the first instance. According to the high probability proof standard of the Civil Procedure Law, taking into account the balance between the creditor's transaction security and the rights protection of the debtor's spouse, the second instance held that the court of first instance was not inappropriate in determining that the loan involved was the debt of Xu. The judgment dismissed the appeal and upheld the original judgment.

【Retrial Ruling】

Zhang Moumou refused to accept the judgment of the second instance and filed a retrial application with the Provincial High Court, which ruled to reject Zhang Moumou's application for retrial.