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ZHEJIANG BONIG LAW FIRM
Zhu sued JiangA and JiangB for the civil loan dispute case
1.Lawyer Litigation Case Template
Ⅰ. Case basic Information collection
Case Type：Cases of lawyers ' lawsuits
Business Type：Private Loan Litigation
Time of court decision：November 4, 2015
Name of court：Ningbo Intermediate People's Court
Name of defence counsel：Chen Jing
Name of law Firm：Zhejiang boning Law Firm
Provide by(real name, Unit + names)：Zhejiang boning Law Firm
Peer review (real name, progressive)：
Retrieving keywords：Borrowing Husband and wife common debt
Ⅱ.Case Body Collection
Zhu sued Jiang A and JiangB for the civil loan dispute case
Two defendants were married, on November 4, 1999 jointly established and operated a company in Ningbo, and then on February 12, 2004 jointly established and operated Yuyao, a limited company.
March 2011, due to the operation of the company to expand the plant and office building, decoration and return of loans, Jiang A on behalf of the two defendants to the plaintiff to borrow 2.5 million yuan, agreed to borrow the period of one year, monthly 6. After the expiration of the loan, the two defendants proposed to renew, after settlement, Jiang A on behalf of the two defendants on March 28, 2012, issued a loan amount of 2.7 million Yuan IOU, agreed to borrow the period of one year, monthly 7. So far, the two defendants have not returned the loan and principal and interest.
July 2011, due to the operation of the company to purchase raw materials, Jiang A on behalf of the two defendants to the plaintiff to borrow 2 million yuan, agreed to borrow the period of nine months, monthly 1.5 points. After the loan expires, the two defendants proposed to renew, Jiang A on behalf of the two defendants on April 15, 2012, issued a loan of 2 million yuan of IOU, agreed to borrow the period of six months, monthly 1.5 points. After the loan expired, the two defendants total returned only 1.3 million yuan, the rest of the loan principal and interest has not yet.
The latter two defendants agreed to divorce on March 12, 2013 in order to evade their obligations. The plaintiff considers that the two defendants ' original spouses, who are required for the production and operation of the company, have jointly borrowed from the plaintiff during the period of the marriage, and that the property derived from Jiang A is used for the family to live together and operate, and that the loan shall belong to the common debt of the husband and wife The plaintiff repeatedly asked the two defendants for repayment of interest, but both defendants were evasive for various reasons and infringed the plaintiff's lawful rights and interests. But the plaintiff entrusted my lawyer to sue, the first instance of the plaintiff won the case, the two defendants filed an appeal, the second trial court on the basis of the first-instance procedure error for the cases sent back to the retrial.
After the retrial of the first instance judgment, the two defendants appealed again and the appellant (plaintiff) commissioned me to act as attorney for the second instance. The retrial of the second instance upheld the judgment of the first instance and dismissed the appeal of the two appellants (both defendants).
In our opinion, this case is a private loan dispute, the main controversy is: 1, the IOU only signed by the husband and wife and Sue when the husband and wife have divorced, whether the loan can be identified as a husband and wife joint debt? 2, IOU is a loan to renew the settlement after the issuance, and the first money is not in line with the principal amount, should be based on the IOU or the certificate of payment to determine the principal?
A. The loan involved in the relationship between the two defendants (appellant) during the survival period, only this point, should be identified as the joint debt of husband and wife
Legal basis 1: The Supreme People's Court "on the application of the marriage Law of the Peoples Republic of China," the 24th stipulates that "the creditor in the marriage relationship between the husband and wife in the name of personal debt claims rights, should be treated according to the common debt of husband and wife." ;
Legal basis 2: Zhejiang High People's Court "on the implementation of the Law on the enforcement of the legal instrument to determine the case of a spouse of the debtor to solve the problem" (January 27, 2014, Zhejiang Province, the Supreme People's Court, the No. 2508 meeting) Relevant provisions, "two, How to hold the judgment standard of the nature of debt in the execution procedure? A: the implementation of the basis of the nature of the debt is not clear, the implementation of the procedure can be based on the "Marriage Law of the People's Republic of China" and its judicial interpretation of the provisions of the judgment and review.".
B. The two defendants involved in the loan are jointly indebted to the plaintiff, which should be identified as the joint debt of the couple.
The relevant witness testimony can prove that the loan is the two defendants jointly borrow, the main related content is as follows：
Li testimony: "Mid-March 2011", "came a man and a woman", "only listen to the guests to borrow money, and the amount is very large, to more than 2 million", "the female guests also added:" If the elder brother is not assured that I can take the House property card, as collateral "," the female guest said: The company's finances are all in my charge, the use of funds by my decision, there will be no problems. "
Xu Testimony (Huang): "Remember in early July 2011 one day, the old Zhu brought his cousin a four to my shop to eat dinner", "listen to their husband and wife said: The recent decline in raw materials, material is an opportunity, but the financial difficulties, can please old Zhu to help solve."
In conclusion, the two defendants have a common interest in borrowing money involved.
If the husband and wife share a common debt, whether the benefits of the debt is shared by the husband and wife, the debt should be recognized as a common obligation.
C. The loan involved is used for the two defendants ' joint operation, and it should be identified as the joint liability of the husband and wife.
Ningbo Qianjin Rubber Co., Ltd. from November 4, 1999 to February 28, 2013, the two defendants jointly established and operated. Yuyao Lighting Co., Ltd. from February 12, 2004 to February 28, 2013, the two defendants were jointly established and operated. Several witnesses testified that the loan was borrowed by two defendants on the basis of the company's business.
In summary, the loans involved are for the two defendants jointly operated enterprises, and the two defendants in the relationship during the period of the existence of the share of the interests of the borrowed money, whether or not the husband and wife have the agreement, the debt should be recognized as a common debt.
D. The loans involved are the common interests of the two defendants, and they should be identified as joint debts of the spouses.
The borrowing involved is required for the two defendants to operate jointly, apparently in the common interest of the two defendants.
To step back, even assuming that the borrowed money actually does not apply to the companies claimed by the two defendants, but is actually used for family life together and/or for lending to others, it is clearly a common interest of both defendants. The two defendants were not divorced, and the couple was a community of interests.
Therefore, whether or not the loan is used for the business of the two defendants is the common interest of the two defendants.
E. The return of the loan in connection with the case is jointly returned by the two defendants, which should be recognized as the joint debt of the husband and wife.
In the case of the loan, the multiple returns have occurred during the survival of the two defendants, the husband and wife of the joint property restitution, Chiang Entreat has never raised objections to this, can be seen, even if the original debt involved in the former defendant Jiang a negative, Chiang Entreat also to ratify the debt.
Moreover, shortly after the case was filed against the first instance, the court failed to serve the defendant, Chiang Entreat, but Chiang Entreat filed a "reconsideration application" to the court for the property preservation applied by the plaintiff, and the application listed the case number and the relevant decision number, As well as other information of the case, the defendant, Chiang Entreat, is actually fully aware of the process and specific information of the case and has entrusted the legal profession with the relevant services. Chiang Entreat, having actually learned the course of the case and with the help of the legal profession, refused to cooperate with the service, deliberately caused the delay in the service of the notice, and refused to appear in court and waived his right of reply, only to prove that Chiang Entreat had no objection to the plaintiff's appeal.
In addition, before this lawsuit, the plaintiff has repeatedly filed a lawsuit against the defendant in connection with the loan involved, and Chiang Entreat has never provided any rebuttal evidence and the reply opinion, but has repeatedly advocated the consultation settlement, requests the plaintiff to withdraw.
In summary, even assuming that the borrower involved is the defendant Jiang A, even assuming that the borrowed money is not used in the joint venture of the two defendants, Chiang Entreat first ratified the debt by repayment, and subsequently ratified the debts involved by abandoning the defense and giving up the right of proof, and should therefore be identified as the joint debt of husband and wife.
F. The plaintiff has completed the burden of proof on the joint debt of the couple, and if Chiang Entreat denies the common debt, it bears the burden of proof.
When the plaintiff, as a creditor, sues both spouses for repayment, the plaintiff shall, as long as the proof of the debt formed in the relationship between the husband and wife to complete the burden of proof, the debt should be recognized as a joint debt, the husband and wife should be jointly repaid If the spouse denies the common debt and refuses to bear the repayment obligation, it must prove that the exception is stipulated in article 24th of the interpretation of the marriage law, or that the creditor is still in debt with the debtor, knowing that the debt is an individual debt.
In this case, the defendant, Chiang Entreat, did not provide any evidence that the debt involved was Jiang a personal debt and should therefore be identified as a husband-wife joint obligation.
Legal basis 1: The Supreme People's Court "on the application of the marriage Law of the Peoples Republic of China," the 24th stipulates that "the creditor in the marriage relationship between the husband and wife in the name of personal 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. "
G. About Principal and interest
The principal recorded in the renewal of the IOU is the amount confirmed by both the original and the defendant after the settlement, and both parties are consenting adults with full civil capacity and shall be responsible for their signature, so the principal should be subject to the IOU.
The Court of second Instance decided to maintain the first instance judgment and dismissed the appeal requests of the two appellants.
The Court of first Instance holds that there are three main points in the dispute: 1. Whether the loan relationship between Zhu and Jiang A is established; 2.Jiang A is still owed the amount of the loan; 3. Whether the debt belongs to the Jiang A, Jiang b joint debt.
In response to the 2nd controversy, the Court of second Instance concluded that: Jiang A on March 28, 2012, April 15, 2012 issued two promissory note to the letter of its loan to Zhu 270000 yuan, 2000000 yuan, a total of 4700000 yuan, Jiang A thinks 2700000 Yuan Iou actually receives 2391000 yuan, 2000000 yuan Iou actually receives 1910000 yuan, should calculate the loan principal and the interest according to the actual amount of borrowings. However, on the basis of the facts ascertained, the delivery time of $2700000 IOU's payment was March 28, 2011, when the actual delivery amount was 2410000 yuan. The delivery time of $2000000 IOU's payment was July 15, 2011, when the actual payment was $1910000. Zhu believes that the 2700000-dollar IOU is the March 28, 2011 delivery of the 2410000 Yuan loan principal and interest settlement, 2000000-yuan Iou is on July 15, 2011 delivery of 1910000 Yuan loan principal and interest settlement, in line with the actual situation, Jiang A also did not provide enough rebuttal evidence to overturn the IOU's proof, and therefore confirmed the proof of the two IOUs involved. Jiang a considers that the loan principal and interest should be calculated on the basis of the amount actually delivered at that time.
In response to the 3rd point of contention, the Court of second instance held that the loan was incurred during the period between Jiang A and Jiang B, and Jiang A, Jiang B benefited from the payment of Jiang A, which found that the debts involved were not improper in the case of Jiang A and Jiang B joint debts, Jiang A and Jiang B believe that the debt involved is Jiang a personal debt, the reasons are insufficient and not supported.
To sum up, the court of second instance found that the appeal of the two appellants was not tenable, the verdict dismissed the appeal, upheld.
A. 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 uniform rules of adjudication are formed in terms of stipulations or practice.
Although the Supreme People's Court "on the application of < law > Some issues of the PRC" 24th expressly stipulates that "the 24th creditor in the marriage relationship between 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. ", 2015 National civil Trial Working Conference minutes pointed out:" 7, in the case of divorce not involving others, the spouse in the name of debt proof of debt for the husband and wife to live together, if the evidence is insufficient, the spouse is not responsible for reimbursement. 8. In the case of the creditor's debt dispute which is sued by the spouse as the defendant, whether the debt of the case is the joint debt of the husband and wife shall be determined according to the 24th article of the Supreme People's Court on the application of < The Marriage law > Some problems of the PRC. If the borrower's spouse proves that the debt borrowed is not for the common life of the husband and wife, it is not liable for reimbursement. "But in the judicial practice of the controversy is very large, according to this judgment also have, not according to this verdict also has."
In this case, the first instance judgment, the retrial of the first instance judgment, the retrial of the court of second instance verdict is the common debt of the husband and wife, which shows that the opinions of the case are more unified between the different court and the two-level courts, because the case is good evidence to show that the husband and wife share the debt, and the defendant has no proof of personal debt, so how However, if the plaintiff can not provide evidence of the joint debt, the loan principal of the case is as high as millions of, whether the court can only rely on the legal interpretation of the marriage law, the burden of proof is allocated to the defendant, and the judgement of the defendant losing, I am afraid the plaintiff is not optimistic.
B. Can the IOU that has been settled and signed be determined?
The principal recorded in the renewal of the IOU is the amount confirmed by both the original and the defendant after the settlement, and both parties are consenting adults with full civil capacity and shall be responsible for their signature.
In this case, the amount recorded in the renewal of an IOU is not the same as the initial loan, but the difference is not very large, the plaintiff can remember and explain the method of settlement, so the court decided that the amount of IOU record is not improper. However, if the amount recorded by the new IOU and the actual money, and the plaintiff did not remember how the specific settlement, then the court can also be recorded as the IOU, I am afraid it is a controversial issue.
【Conclusion and suggestion】
In this case, the issue of how to identify the joint debt, the issue has been widely concerned about the community, each year after the NPC, there will always be representatives of the National People's Congress, the CPPCC members on this issue proposals, proposals. It's very complicated in real life for a spouse to borrow it is not only the case of a spouse who has borrowed in the name of a person to cause damage to his or her partner during the duration of the marriage; there is also the conspiracy of the husband and wife to assign the common property to a party by means of divorce, and to allocate the debt to the other party, thereby achieving Circumstances that impair the interests of the creditor.
Courts around the issue is also very large, in the determination of the joint debt, in addition to "for the husband and wife to live together" standard, whether to consider the increase "for the common interests of the family" standards; If the borrower's spouse proves that the debt borrowed by the borrower is clearly beyond the daily life and production operations, or that the borrower has a bad hobby such as gambling or drug addiction, the evidence proves that the responsibility can be transferred. These issues are very controversial at the moment. Hope to strengthen research, through ingenious and operable legislation technology, better balance the protection of creditor's trust interests and the maintenance of women and children's rights, unified judgment scale.
It is also suggested that lenders should seek help from professional lawyers as early as possible to prevent risks and reduce disputes when lending money and renewing them. For the purposes of the present case, the lengthy proceedings would not have arisen if the lender had asked both spouses to sign the IOU on loan, and if the lender had asked for a mortgage at that time, it would not have occurred in the case of failure to do so after the victory; If lenders are required to retain their borrowing credentials for multiple borrowings, they will not be able to lose the interest earned on their borrowings until they have had evidence.