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BONING CASE

Zhang sued Xu and Chen for private loan dispute case

Ⅰ. Case basic Information collection

Case Type:Cases of lawyers ' lawsuits                  

Business Type:Contract Litigation                      

Time of court decision:September 20, 2015; May 17, 2016; January 16, 2017

Name of court:Ningbo Haishu District People's Court, Ningbo Intermediate People's Court; Zhejiang Provincial High People's court;                  

Name of solicitor:Zhu Pingfei               

Name of law Firm:Zhejiang Boning Law Firm

Provided by:Zhejiang Boning Law Firm

Peer review (real name, progressive):                          

Retrieving keywords:The nature of the debts of a party in the name of a person during marriage

  Ⅱ. Case Body Collection

  Zhang sued Xu and Chen for private loan dispute case

  【Case Briefs】

  Zhang and Xu are the relations of the neighbors. From August 15, 2011 to 17th Zhang to Xu three loan cash meter 200000 yuan, August 23, 2011 to August 2012, Zhang by the bank repeatedly to Xu loans amounted to 1520000 yuan, Xu Xiangchang issued an IOU, and in receipt of the above remittance on the same day or the next day transfer to other outsiders. Xu from August 11, 2011 to July 1, 2013, the bank has repeatedly paid interest to Zhang.

  Xu and Chen on May 25, 2009 registered marriage, Xu is remarried. August 19, 2013, the two sides agreed to divorce, marital infertility. May 25, 2009, Xu and Chen Zhi Ningbo notarization Notary Office to conduct premarital property notary, notarized confirmation: First, Chen name housing three sets and office room a set of all Chen; second, Chen name Time Square, a set of Chen all, the auction house has now paid 1188774 yuan, the balance of 1760000 yuan by Chen's commitment Three, Chen existing bank deposit 850000 yuan.

  In addition, March 10, 2009, Chen and the case signed a contract of real estate transfer, the name of the wedding villa, a transfer, the same year June 24, the case was transferred by CITIC Bank to pay the payment of 2400000 yuan. September 4, 2009 Chen through the Bank of Ningbo to silver billion real estate remittance Times Square real estate balance 1683979 yuan.

  From January 2011 to November 2012, Chen So-and-so to the cumulative remittance of more than 4.4 million yuan, during Xu So-and-so will be remitted to Chen So-and-so, the amount is basically equivalent. August 19, 2013 Xu So-and-So and Chen So-and-so reached a divorce agreement, the agreement stipulates that: First, the marriage has no deposit, after the divorce of their respective deposits belong to their own; second, before the marriage of their respective property to their own, after the marriage of the purchase of the woman owned.

  Chen is a financial institution in this city employees, income is stable. Xu Investment two companies: 1, Vibration Good company, was established in December 15, 2010, registered capital of 10000000 yuan, the defendant Xu Huiming shareholding 30%; 2, Ken Ph. D Company, established on January 23, 2009, registered capital of 5000000 yuan, defendant Xu Huiming shareholding 45%, and for the legal representative. The divorce did not involve Xu's stake in the two companies.

  January 22, 2015, Zhang So-and-so and Chen So-and-so for the defendant to bring a lawsuit, Chen So-and-so received a copy of the court indictment, commissioned my lawyer for the agent participated in the lawsuit activities. Xu So-and-so due to the whereabouts of the absence of trial, after many trial, first instance that the evidence provided by Zhang So-and-so is not enough to prove that the loan used for Xu So-and-so and Chen So-and-so married life expenses and production and operation needs, Chen So-and-so also did not ratify the loan, the loan is Xu So-and-so personal debts, Xu So-and-so bear the responsibility to repay.

  Zhang refused to judge the first instance, filed an appeal, the second court heard that Zhang advocated difficult to determine the borrowed money for Xu and Chen's common life, common operation, also difficult to identify Xu, Chen exists through divorce avoidance facts, the verdict dismissed appeal, upheld.

  【Agent Opinion】

  Ⅰ. Chen has no knowledge of the existence of the loan and how the interest is to be agreed, and has not been involved in the loan beforehand and has not ratified the loan afterwards.

  Xu Hechen was remarried, signed before marriage in May 2009 before the marriage agreement and notarized. August 19, 2013 because of personality discord, both sides ended a brief marriage life. For reasons such as remarriage and Xu You children, both parties manage their own income after marriage.

  Zhang claims that between August 2011 and February 2013, Xu to its borrowings amounted to RMB 1.72 million yuan, but Chen did not know, Chen said not to recognize Zhang, Zhang admitted to borrow when Chen is not present, do not know its and Xu borrowing matters, it has never mentioned this loan with Chen, after the loan expires also not to Chen advocated, Even after Xu was unaccounted for, he did not assert his claim for the principal and interest of the loan during his proceedings before the court. As a result, Chen did not participate in the Xu Xiangchang of the loan, and afterwards did not investigate the loan to be recognized.

  Ⅱ. Zhang Sue said that although the loan occurred in Xu and Chen marriage during the period, but the loan is Xu's personal debt, it requires Chen common repayment of the loan principal and interest without facts and legal basis. The specific reasons are as follows:

  a.Chen did not share the agreement with Xu to borrow money from Zhang.

  In this case, the consensual parties to the loan are Zhang, the time, purpose and interest agreement of the loan only Zhang the most clear, and there must be a basic understanding and trust between the debtor and the creditor who can produce the borrower's consent, especially as a lender, there must be a basic understanding of the borrower including his family and assets. And to recover the loan has a relatively large grasp, will be so large amount of money assured to the borrower. In this case, the debt for Xu, Chen not only do not know Zhang, borrowing from the beginning of the ignorance, and has not been ratified afterwards. Thus, there is no gall between Zhang.

  b.Xu's claim to his borrowings was not used for the common living expenses and production operations of Xu and Chen during the marriage.

  Zhang in the trial did not say clearly the exact use of Xu's borrowings, a will say for the return of housing loans, a will be said for Xu and Chen joint operation. After Zhang applied for court investigation and Evidence, the court transferred Xu and Chen five years of marriage during the period of all bank accounts and bank transfer list, the bank list shows Xu Hechen between the transfer records, but all occur in Zhang loans and transfer time, and the amount of transfer between the two sides is basically equivalent. The only one and Zhang to Xu transfer the next day to transfer to Chen's 200,000, Chen also provided the court three months ago, Chen transfer to Xu 200,000 Yuan bank remittance voucher. Most crucially, it involves Zhang's money to Xu through bank transfers, Xu's bank list, which was transferred by the court, was transferred to the third person on the day or the next day after receiving the loan, and the third person, not only had no relationship with Chen, nor did Chen know them.

  In addition, Xu invested two companies, Dr. Ken and Zhen Jia, respectively, was established in January 23, 2009 and December 15, 2010, and Zhang sued the loan occurred between August 2011 and February 2013. Moreover, Xu in the above two companies have a stake, but do not participate in the operation, and Chen marriage during the duration of a pawn company to work, Xu in the pawn company does not have a stake. Therefore, Zhang Sued Xu to his borrowings are not used in Xu and Chen marriage during the life of common living expenses and production and operation.

  c.Chen did not share the benefits of Zhang's alleged borrowings, and all of the houses under his name now are their premarital property.

  The court investigation, especially the third trial, focused on reviewing the whereabouts of the money transferred to Xu, Xu did not use the money transferred to purchase property, cars and other married common property, Xu and Chen marriage in the name of his purchase of a house, but the purchase time before its loan to Zhang, Chen Haixu in the divorce agreement agreed that the housing to Chen all, But Chen did not actually get the housing, after the two sides for divorce, Xu will transfer the housing to the third party outside the case, the third person also paid the equivalent of the house price to Xu. As for Xu's name before marriage and marriage in other companies, Chen not only uninformed, in the divorce agreement is not divided into profits. All the houses under Chen's name are notarized personal property before marriage with Xu.

  Ⅲ. Chen and Xu is remarried, the marriage period of the implementation of the financial system, Zhang Qi bear a certain duty of care.

  Xu and Chen remarried, in May 2009 before the marriage signed a prenuptial agreement and notarized property. August 19, 2013 because of personality discord, both sides ended a brief marriage life. For reasons such as remarriage and Xu You children, both parties manage their own income after marriage. Zhang can entrust such a large amount of money to Xu, and from borrowing to litigation for up to three or four years time, Zhang has never and Chen mentioned such a large amount of borrowing, it does not know Xu marriage and property status of the rhetoric is difficult to convince people.

  Ⅳ. From the legal and judicial interpretation of the provisions and application, Zhang sued the loan should also be identified as Xu's personal debt.

  a.Zhejiang High Court, "on the trial of civil lending disputes in the guidance of a number of issues," 19th of the "marital relationship during the survival period, the husband and wife in the personal name for the daily needs of the debt, should be identified as the husband and wife common debt" made the following explanation: " The need of daily life refers to the necessary matters in daily life for both spouses and the minor children who live together, including daily necessities purchase, medical service, children education, daily cultural consumption, etc. "Where a spouse exceeds the required scope of daily life, it shall be deemed to be a personal debt, except in the following cases: (i) the lender is able to prove that the assets derived from the liabilities are used for the common living and business needs of the family, and (b) the other spouse subsequently ratifies the debt. "Judging from the guidance, the plaintiff's claim in this case is the joint debt of husband and wife, and the burden of proof is on the lender side." The evidence submitted to the Court does not prove that the money transferred to Xu So-and-so has acquired a house after marriage, or that he has run a company, that is, the proof submitted by Zhang does not prove that the loan is used for family life together.

  b.According to the judicial interpretation of the marriage law and the Supreme Court (2014), the 10th reply of the people, in combination with the material from the court in this case, Xu transferred the money to the third person he did not know. As well as a notarized copy of the pre-marital property agreement submitted by Chen to the court, divorce agreement and the property of both before and after marriage, as with Zhang did not agree and has divorced with the borrower, Chen, in the case of the borrower Xu whereabouts of the case notice, Chen has done the debt is not used for the burden of living together husband and wife.

  【First Instance judgment】

  First instance, the controversy in the case of the focus of two, a, Zhang and Xu between the agreed interest? Can the loan involved be identified as a husband-wife joint debt? Controversy focus one, from Zhang submitted by the Bank of the list analysis, combined with the two people's message content, can be identified between Zhang and Xu interest agreement. The controversy focuses on two, and the borrowed money cannot be identified as a husband-wife joint debt. The reasons are as follows: 1, is involved in the loan originated in the relationship between the husband and wife, but the loan of the IOU Xu Xiangchang issued, money is also remitted to Xu Bank account, interest also by Xu Pay, and the amount of money borrowed is large, there is no evidence to confirm the cost of living together. Zhang in the trial also recognized Chen did not intervene in Xu Xiangchi loan, loan expires also not to Chen Dunning. 2, Xu is remarried, and Xu and Chen have before marriage property notarization, Chen has a higher solid income, enough to maintain their lives and pay the mortgage of premarital property. As for Zhang's proposal that the property charges of Xu and Chen's living quarters should be spent by the company, we believe that Xu and Chen will live together during the life of the marriage, and Xu bear part of the living expenses is normal and reasonable, can not conclude that the borrowed money for the husband and wife to live together. 3, Chen has fixed work, there is no evidence to confirm its involvement in Xu business activities. And the loan involved in the production of time, Xu Hechen Although there is money, but the two sides of the money is basically equivalent, there is no evidence to confirm that Zhang lent to Xu's money has been Chen occupy.

  In summary, the evidence provided by Zhang is not sufficient to confirm that the loan was used for the common life and business needs of Xu and Chen during the marriage, and the loan was not subsequently ratified by Chen nor was it a personal debt, so Zhang's claim that the loan was a common liability was not tenable. Xu returned a loan of 1720000 yuan, and paid interest of 610488 Yuan, and dismissed Zhang's other claims.

  【Judgment of the second instance】

  Zhang refused to accept the first instance of the verdict, that the first instance found that the facts are unclear, the application of legal errors, filed an appeal. Chen second trial continued to entrust my lawyer to participate in the litigation activities.

  The facts identified in the second instance are basically consistent with the first instance. According to the high probability proof standard of the Civil Procedure Law, the comprehensive creditor's transaction security and the debtor spouse's right protection balance of interests, second instance thinks that the original court finds that the loan in the case is the personal debt of Xu. The verdict dismissed the appeal and upheld it.

  【Retrial ruling】

  Zhang pleaded not guilty to the second trial, submitted a retrial application to the provincial High Court, and the provincial High Court rejected the application for retrial.

  【Case analysis】

  The biggest controversy in the case is whether Xu's loan to Zhang in his personal name during the marriage is a personal debt or a common debt during marriage. In accordance with the provisions of the judicial interpretation of the Marriage Law (ii) 24th: "The creditor in the marriage is the existence of the husband and wife in the personal name of the debt claims rights, should be treated according to the common debt of husband and wife." However, the spouse can prove that the creditor and the debtor expressly agree to be a personal debt, or can prove that the circumstances under section 19th of the Marriage law are excluded. "To accurately define the common debt and personal debt of spouses, avoid simple, mechanical application of the judicial interpretation of the Marriage Law (b) 24th, the Supreme Court, combined with the new situation in judicial practice, will gradually implement the application of the article, specifically: (1) in accordance with the provisions of law 41st, The debt of the husband and wife is a common debt, and there is no debt for common life. Of course, the scope of the husband and wife to live together is not only to consider the day-to-day family life, but also consider the family production and management activities. (2) Reasonable distribution of burden of proof, the husband and wife because of daily life needs of debt can be directly identified as a common debt, beyond the daily necessities of the large amount of debt, then the creditor and the borrower to prove that the money for the husband and wife living together. (3) The husband and wife for the production and business activities of the debt, according to the nature of production and operation activities, the role of the two spouses in which the status of the third party is the goodwill and other specific circumstances to determine whether the joint debt of husband and wife.

  In this case, the court of one or two is precisely understood and applied the judicial interpretation of the Marriage Law (ii) The typical example of the 24th article, it can be said that the Supreme Court is to comb all the courts in the determination of marital debt good experience and safeguard the outcome of the case judge Justice.

  【Conclusion and suggestion】

  In recent years, with the high incidence of private lending cases, the issue of the determination of marital debt has increased. But it is still difficult to completely solve the problem of marital debt in trial practice. It is mainly due to the difficulty of proving the burden of proof for the non-indebted spouse and the difficulty of the Court's verification, especially as to whether the non-indebted spouse is not informed but cannot prove that it is not applicable to the common family life, and that the standard is not uniform in practice. For this reason, it is urgent for the legislature to make legislative explanations on the marital debt problem, and there is a unified standard of determination in judicial practice.

BONING CASE